Court No. - 67
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26819 of 2019 Applicant :- Mohammad Rafi Opposite Party :- State Of U.P.
Counsel for Applicant :- Suresh Bahadur Singh,P.K. Singh Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Learned AGA has filed counter affidavit on behalf of State is taken on record.
Heard learned counsel for the applicant, learned AGA for the State and perused the material on record.
By means of this application, the applicant who is involved in case crime no. 37 of 2019, under Sections 363, 366, 376 IPC and Section 3/4 POCSO Act, P.S. Jalalabad, District Shahjahanpur, is seeking enlargement on bail during the trial.
Learned counsel for the applicant submits that the applicant is innocent and he has been falsely implicated in the present case. Learned counsel for the applicant has further submitted that the FIR of the present case was lodged against the applicant and three other persons. As per the allegation made in the FIR is that they have enticed away the niece of the complainant, who is aged about 16 years, on 22.01.2019. The girl was recovered on 26.01.2019 and thereafter her statement was recorded. Learned counsel for the applicant has drawn the attention of the Court in her statements recorded under Sections 161 and 164 Cr.P.C. respectively. There were some contradictions in both the statements and the allegation of rape is not supported by medical evidence.
According to birth certificate of the victim, issued by Nagarpalika Parishad Jalalabad in which her date of birth is mentioned as 12.03.2002 as such the victim was still minor at the time of alleged commission of offence, the birth certificate of the victim is annexed as annexure-CA-2 of the counter affidavit. This certificate of birth was issued on 23.02.2019 showing her date of birth as 12.03.2002, indicates that for this purpose an anti date birth certificate was prepared.
I have carefully perused the birth certificate, which is annexed as annexure-CA-2 of the counter affidavit, the birth certificate was applied and the date of registration itself is 23.02.2019 and the same could not be ruled out. The statement under Section 164 Cr.P.C. of the girl clearly states that she went to Gurusahayganj, Kanpur and thereafter Mumbai and she remain in the company of the applicant almost four days without any specific resistance or alarm indicative of the act that she appears to be in the consensual relationship with the applicant. He lastly submitted that the applicant is in jail since 27.01.2019, is entitled to be enlarged on bail during the pendency of trial.
Per contra learned AGA opposed the prayer for bail and could not dispute the aforementioned facts.
Considering the submissions made by learned counsel for the applicant as well as learned AGA and without expressing any opinion on the merits of the case, I find it to be a fit case for bail.
In view of the above, let the applicant- Mohammad Rafi be released on bail on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned in case crime no. 37 of 2019, under Sections 363, 366, 376 IPC and Section 3/4 POCSO Act, P.S. Jalalabad, District Shahjahanpur, with the following conditions:-
(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT THEY 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 THEIR COUNSEL. IN CASE OF THEIR ABSENCE , WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSE 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 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 APPLICANTS ARE 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 APPLICANTS.
However, it is made clear that any 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 a 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 :- 30.7.2019 v.k.updh.