Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40806 of 2018 Applicant :- Kasim@Sameer Opposite Party :- State Of U.P.
Counsel for Applicant :- Himkanya Srivastava,Seema Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Sri Himkanya Srivastava, learned counsel for the applicant, Sri Om Prakash Mishra, learned A.G.A. for the State and perused the material on record.
The present bail application has been filed by the applicant- Kasim@Sameer with a prayer to enlarge him on bail in Case Crime No. 138 of 2018, under Sections 376, 506 I.P.C., and Section 3/4 POCSO Act, Police Station-Masoori, District- Ghaziabad.
It has been argued by learned counsel for the applicant that the applicant has been falsely implicated in the present case. The present F.I.R. has been lodged by the mother of the prosecutrix after a delay of about 41 days on 14.12.2018, but no plausible explanation has been given. As per the version of the F.I.R., the prosecutrix-Km. Khushi was persuaded by the applicant to go along with her where the offence of rape was committed on her. The prosecutrix has supported the prosecution version in her statement recorded under Section 161 Cr.P.C. as well as in her statement recorded under Section 164 Cr.P.C. As per the conversation between the applicant and the prosecutrix by phone calls, the presence of the prosecutrix along with the applicant is not proved, copy of the details of the conservation between them has been annexed as Annexure no.2 to this affidavit accompanying with bail application. A report was called by this Court vide order dated 26.10.2018 as to whether the conversation has taken place between the prosecutrix and the applicant and the same has been filed by the learned A.G.A., which proves that the conversation between the applicant and the prosecutrix has taken place and, therefore, it is clear case of false implication. As per the X-Ray report, the age of the prosecutrix was opined to be 17 years and she has refused to get herself medically examined, copy of which report has been annexed as Annexure no. 3 to the affidavit accompanying with application. 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 05.03.2018.
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.
The Apex Court in the case of Sanjay Chandra Vs. CBI, (2012) 1 SCC 40 has held that it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. Seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor : The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.
Considering the facts and circumstances of the case as well as submissions made by learned counsel for the parties and also perusing the material on record, 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.
Order Date :- 28.2.2019 JK Yadav