Court No. - 42
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 23363 of 2019 Applicant :- Kashi Nath Gupta @ Umesh Kumar Gupta Opposite Party :- State Of U.P. Counsel for Applicant :- Devesh Kumar Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Mr. Devesh Kumar, learned counsel for the applicant and Mr. Amrit Raj Chauraisiya, learned A.G.A. for the State for the State as well as perused the material on record.
The present bail application has been filed by the applicant- Kashi Nath Gupta @ Umesh Kumar Gupta with a prayer to enlarge him on bail in Case Crime No. 287 of 2018, under Sections 452, 376 I.P.C. and Sections 3/4 POCSO Act, Police Station-Ram Nagar, District-Varanasi, during the pendency of the trial.
It has been argued by the learned counsel for the applicant contended that the applicant is innocent and due to petty dispute regarding parking of vehicle, the applicant has been falsely implicated in the present case. It has further been argued that seeing the variations in the version as unfolded in the first information report as well as in both the statements of the victim recorded under Sections 161 and 164 Cr.P.C, the entire prosecution story appears to be false. Learned counsel for the applicant has drawn the attention of the Court to the medical examination report of the victim, which is at page 34 of the paper book, wherein it has been reported by the Doctor concerned that there was no sign of any external injury and hymen was present also, which goes to show that the alleged incident has not taken place. The medical examination report does not corroborate the prosecution story. As per the medical examination report, the victim is 16-17 years old. The applicant has no criminal antecedents to his credit except the present one. It is lastly contended that there is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail. The applicant is in jail since 7th December, 2018.
Per contra learned A.G.A. has opposed the bail prayer of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserves any indulgence. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail. However, the learned A.G.A. could not dispute the factual submissions as urged by the learned counsel for the applicant.
Considering the facts and circumstances of the case, submissions made by learned counsel for the parties and the material on record as well as the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. & Another reported in (2018) 3 SCC 22 and without expressing any opinion on merit of the case, let the applicant involved in aforesaid case crime be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions:-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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 of the Indian Penal Code.
(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. is issued and the 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 of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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.
(Manju Rani Chauhan, J.) Order Date :- 6.6.2019 Sushil/-