As per office report, notice has been served upon the O.P. No.2 on 18.11.2020 and he has been represented by Dhirendra Kumar Verma. However he is absent today in the revised call.
Heard Surendra Mohan Mishra, learned counsel for the applicant, Shri B.P. Maurya, learned A.G.A. and perused the record.
The applicant has approached this Court by way of filing the present bail application to enlarge him on bail in Case Crime No.83 of 2020 under Section 376-D.A., 506 I.P.C. & 5G/6 POCSO Act, Police Station-Khesaraha, District-Siddharth Nagar after rejection of his Bail Application vide order dated 14.7.2020 passed by learned Additional District and Sessions/Special Judge POCSO Act, Siddharth Nagar.
Learned counsel for the applicant submits that in the F.I.R. and in the statement recorded under Sections 161 and 164 Cr.P.C., there is no allegation against the applicant with regard to offence committed under Section 376 I.P.C. He has pointed out from the record that in the abovementioned document there is a specific version of the victim that the applicant has not committed any offence under Section 376. He further submits that there is no criminal history against the applicant and he is languishing in jail since 28.5.2020, there is no likelihood of early disposal of trial and the applicant undertakes that if enlarged on bail, he will never misuse his liberty and will co-operate in the trial.
Learned A.G.A. has vehemently opposed the bail application and submits that the presence of the applicant is not disputed. However, he has not denied the factual submission mentioned by the learned counsel for the applicant.
Law on bail is well settled that 'Bail is rule and jail is exception'. Bail should not be granted or rejected in a mechanical manner as it concerns the liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as the existence of a prima facie case against the accused, the gravity of the allegations, position and status of the accused, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the accused. It is also well settled that the Court while considering an application for bail must not go into deep into merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered while considering application for bail. It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
Considering the rival submission, material available on record, the period of detention already undergone, the unlikelihood of early conclusion of trial, absence of any convincing material to indicate the possibility of tampering with the evidence, relevant factors mentioned above, particularly that in the F.I.R. and in the statement recorded under Sections 161 and 164 Cr.P.C., there is no allegation against the applicant with regard to the offence committed under Section 376 I.P.C. rather there is a specific reference in the abovementioned statement of the victim that the applicant has not committed rape with her and that there is no criminal history of the applicant and he is in jail since 28.5.2020, the applicant is entitled to be released on bail in this case.
Let the applicant Kunj Vihari, involved in Case Crime No.83 of 2020 under Section 376-D.A., 506 I.P.C. & 5G/6 POCSO Act, Police Station-Khesaraha, District-Siddharth Nagar be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
(ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) 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.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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.
(v) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of 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 and the trial court may proceed against him under Section 229-A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
The bail application is allowed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date:-20.1.2021 SB