Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20627 of 2018 Applicant :- Manish Nishad Opposite Party :- State Of U.P.
Counsel for Applicant :- Prakash Chandra Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the applicant, learned AGA and perused the record.
By means of this application, the applicant who is involved in case crime no. 184 of 2018, under Sections 363, 366, 376(2) (J) IPC, Section 3/4 POCSO Act and Section 3 (2) (5) SC/ST Act, P.S. Shahpur, District- Gorakhpur is seeking enlargement on bail during the trial.
Learned counsel for the applicant in support of his application for bail submits that the applicant is innocent. He has been falsely implicated. It is further submitted that the FIR was registered by the father of the victim on 20.03.2018 for the incident of kidnapping of her daughter under section 363, 366 IPC and 7/8 POCSO Act registered as case crime no. 184 of 2018 naming the applicant as sole accused person in the FIR and mentioning therein that her daughter (17 years) is missing since 18.03.2018 about 7 in the evening. The informant beliefs that the girl has enticed away by the named accuse person. Her daughter is minor and informants apprehends either she would be compelled to do the same wrong act and if it so then, the entire responsibility would be of the applicant. During the course of the investigation, the informant in his statement recorded u/s 161 Cr.P.C. has submitted that her daughter is 17 years of age and student of class- XIth. He further alleged that the applicant was having an ill eye over her daughter and on 18.03.2018 he has enticed away her daughter. After recovery of the girl, she in her statement recorded u/s 161 Cr.P.C. states that the applicant has presented a mobile phone to her and made an offer that she would remain in constant touch on telephone. On the fateful day he came to her house and invited her to visit market. She accompanied the applicant on his motor cycle and went to Nausadh and thereafter both of them went to Kanpur where they have stayed for 2 nights. She further submitted that he has established physical relationship with her. After that, both of them came to Gorakhpur and left her alone at Mohaddhipur and fled away. It is further argued by the counsel for the applicant that she has refused to get her medically examined. In her statement before the doctor she has stated that on 18.03.2018 she went along with the applicant to Kanpur where they have stayed at Manish's uncle house where he has ravished her honour. But in her statement recorded on 27.03.2018 u/s 164 Cr.P.C., she again change her version under the influence of her father but has admitted that she knows the applicant from last one month who have gifted her a mobile phone and she was in touch with the applicant on telephone. On the fateful day at 7 in the evening, she went to attend the cal of nature the applicant was taken her to her aunty place at Nausadh and thereafter on the same day at 8:30 p.m. went with him to Kanpur where the applicant has raped her. As per the high school certificate her date of birth is 25.10.2001.
Learned counsel for the applicant has submitted that she her conduct that she was having a previous acquaintance with the applicant and has accepted the valuable gift in a shape of mobile phone, she on her own have joined the company of the applicant and went from Nausadh to Kanpur and enjoyed the quality time with him without any effective resistance and even after coming back, she has refused to get her medically examined. For these factors if conjointly taken into account, would prima facie make her that she was a consenting party of the entire episode that's why without informing anybody at her residence, she went along with the stranger. She is a student of class-XIth. She knows all the far reaching repercussions of her conduct. More over, she have not admitted herself for any medical examination. It is not sure whether at all she was raped or not. It is further submitted that the applicant is in jail since 26.03.2018 having no no criminal antecedents except the present one.
Learned AGA opposed the prayer for bail but could not dispute the aforesaid facts and the legal submissions as argued by the learned counsel for the applicant.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties and without expressing any opinion on merits of the case, I am of the view that the applicant has made out a fit case for bail.
Let the applicant Manish Nishad, 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/SHE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) 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 THE HIM/HER 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.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 30.5.2018 Nisha