Court No. - 67
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26368 of 2019 Applicant :- Mohammad Shadab Opposite Party :- State Of U.P. Counsel for Applicant :- Ajay Kumar Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Counter affidavit filed on behalf of the State today is taken on record.
Heard learned counsel for the applicant, learned AGA and perused the record.
Contention raised at the Bar is that the applicant has been falsely implicated in the present case. It has been further submitted that FIR of the alleged incident, said to have taken place on 16.02.2019, by none other but the victim herself on 25.02.2019 at P.S. Khurja Dehat, District Bulandshahr under sections 363, 376 IPC and 4 of the Protection of Children From Sexual Offences Act against one Rizwan. He next contended that there is inconsistency between the text of the FIR, wherein she claimed her age to be 14 years and narrated that the aforesaid accused Rizwan committed rape upon her but in her statement recorded under section 164 Cr.P.C., she fastened four persons (including the present applicant- Mohd. Shadab) stating therein that all of them committed rape upon her and this makes the entire prosecution fishy. He next contended that the prosecutrix was opined to be aged about 16/17 years. No injury was found on the person of the prosecutrix even there was no sign of rape on her person. Case of the applicant- Mohd. Shahab is quite distinguishable from the case of the co-accused Rizwan. It was lastly urged that the applicant is in jail since 03.04.2019, having no criminal antecedents to his credit.
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, this Court is of the view that the applicant has made out a case for bail.
Let the applicant Mohd Shadab, involved in Case Crime No. 41 of 2019, under sections 363, 376 IPC and 4 of the Protection of Children From Sexual Offences Act, P.S. Khurja Dehat, District Bulandshahr be released on bail 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 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 COUNSEL. IN CASE OF HIS ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM UNDER SECTION 229-A IPC.
(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., 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 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.
(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 bail so granted by this court.
Order Date :- 31.7.2019 shailesh