Court No. - 28
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32384 of 2019 Applicant :- Karan Opposite Party :- State Of U.P.
Counsel for Applicant :- Sunil Kumar Dwivedi,Vidya Sagar Dwivedi Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Sunil Kumar Dwivedi, learned counsel for the applicant and the learned A.G.A. for the State.
This application for bail has been filed by the applicant Karan seeking his enlargement on bail in Case Crime No. 0198 of 2019, under Sections 363, 366, 376 I.P.C. and Sections 3/4 POCSO Act, Police Station Sector 39 Noida, District Gautam Budh Nagar, during the pendency of the trial in the above mentioned case crime number.
Learned counsel for the applicant submits that as per prosecution story as unfolded in the F.I.R., the age of the prosecutrix has been stated to be 17 years. Consequently, the mandatory provisions of Section 439 Cr. P.C. are not required to be complied with in the present case.
In respect of an incident which occurred on 21.2.2019, one Bhavesh Kamat, father of the prosecutrix lodged an F.I.R. dated 27.2.2019, which was registered as Case Crime No. 0198 of 2019, under Sections 363, 366, 376 I.P.C. and Sections 3/4 POCSO Act, Police Station Sector 39 Noida, District Gautam Budh Nagar. In the aforesaid F.I.R. the applicant Karan was named as the named accused. According to the prosecution story, the applicant is guilty of taking away the minor daughter of the first informant. Subsequent to the F.I.R. dated 27.2.2019, the prosecutrix was recovered on 16.3.2019. Thereafter, her statement under section 161 Cr. P. C. was recorded on the same day, followed by her statement under section 164 Cr. P. C. on 18.3.2019. On the basis of the statement of the prosecutrix section 376 IPC and section 3/4 POCSO Act were added.
Learned counsel for the applicant submits that the applicant has been falsely implicated in the above mentioned case crime number. The applicant is innocent. He is in jail since 19.3.2019. He then submits that the prosecutrix is a consenting party as is evident from her statement under section 161 as well as 164 Cr.
P. C., the prosecutrix is more than 17 years of age on the date of occurrence, as such the applicant is liable to be enlarged on bail.
Per contra, the learned A.G.A. has opposed the prayer for bail. However, he could not dispute the factual and legal submissions urged by the learned counsel for the applicant.
Having heard the learned counsel for the applicant and the learned A.G.A. for the State, complicity of the accused, nature of the offence and without expressing any opinion on merits of the case, I am of the view that the applicant has made out a case for bail.
Let the applicant-Karan be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under section 229-A I.P.C..
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under section 82 Cr.P.C., may be issued and if applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under section 174-A I.P.C.
(iv) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening oSatyam Pandeyf the case, (2) framing of charge and (3) recording of statement under section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
(v) The trial court may make all possible efforts/endeavour and try to conclude the trial within a period of one year after the release of the applicant.
Order Date :- 22.8.2019 HSM