Court No. - 42
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 22618 of 2019 Applicant :- Mohd. Parvez @ Vikki Opposite Party :- State Of U.P.
Counsel for Applicant :- Suresh Kumar Srivastava,Amish Kumar Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
Supplementary affidavit filed on behalf of the applicant in Court today is taken on record.
Heard Mr. Amish Srivastava, learned counsel for the applicant and Mr. Om Prakash Mishra, learned A.G.A. for the State as well as perused the material on record.
The present bail application has been filed by the applicant-Mohd. Parvez @ Vikki with a prayer to enlarge him on bail in Case Crime No. 148 of 2019, under Sections 363, 354, 376 I.P.C. and Sections 3/4 POCSO Act, Police Station-Kotwali, District-Ghazipur, during the pendency of the trial.
It has been argued by learned counsel for the applicant that the victim was friendly with the brother of the applicant to which he objected, therefore, the present first information report has been lodged falsely implicating the applicant and allegation of sexual assault has been made against him by the victim. It has further been argued by the learned counsel for the applicant that there are variations in the statements of the victim under Sections 161 and 164 Cr.P.C. There is no whisper about the victim being sexually assaulted by the applicant in the statement of the victim under Section 161 Cr.P.C., whereas in the statement recorded under Section 164 Cr.P.C., the victim has stated that the applicant has sexually assaulted her, which also makes the prosecution case doubtful. As per the medical examination report, the victim is 16 years old and there was no internal or external injury on the body of the victim. The applicant has no criminal antecedents to his credit except the present one. It is next contended that 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 18th March, 2019.
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. However, the learned A.G.A. could not dispute the factual submissions as urged by the learned counsel for the applicant.
Considering the facts and circumstances of the case, submissions made by learned counsel for the parties and the material on record as well as the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. & Another reported in (2018) 3 SCC 22 and 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.
(Manju Rani Chauhan, J.) Order Date :- 4.6.2019 Sushil/-