Court No. - 18
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 16464 of 2019 Applicant :- Mohd. Pasa Opposite Party :- State Of U.P.
Counsel for Applicant :- Sunil Kumar Srivastava,Vinod Kumar Srivastava Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is a second bail application on behalf of the applicant, Mohd. Pasa in connection with Case Crime No. 144 of 2017 (Special Case No. 73 of 2017, State of U.P. vs. Danish & Others), under Sections 376-D I.P.C. & 5G/6 POCSO Act, P.S. Jankpuri, District Saharanpur.
Heard Sri Padmakar Pandey holding brief of Sri Sunil Kumar Srivastava, learned counsel for the applicant and Sri Indrajeet Singh Yadav, learned A.G.A. appearing for the State.
The first application for bail was rejected by me vide order dated 05.12.2018, passed in Criminal Misc. Bail Application No. 953 of 2018. The learned counsel for the applicant has pointed out that co-accused, Danish whose role is identical to that of the applicant, has been enlarged on bail by another bench of this Court vide order dated 25.03.2019 passed in Criminal Misc. Bail Application No. 5767 of 2019. It is submitted that the case against the co-accused, Danish and the applicant is identical, and, as such, the applicant is entitled to bail on ground of parity. Learned counsel for the applicant has also invited the attention of the Court to the dock evidence of the prosecutrix recorded in the ongoing trial, where she has wholesomely disowned the prosecution story and has been cross examined by the learned State Counsel after declaring her hostile. She has stood by her exculpatory stand and has said that none of the three accused have ravished her. She has also said that the statement to the police under Section 161 Cr.P.C. is not her authorship, whereas the statement before the Magistrate under Section 164 Cr.P.C. was caused to be recorded by the police under persuasion and pressure. It is submitted that considering the dock evidence of the prosecutrix, there is no justification to further detain the applicant in bail pending trial, who is in jail since 18.06.2017.
Learned A.G.A. has opposed the prayer for bail and has submitted that evaluation of evidence during trial is not within the province of this Court. He has further not disputed the factum of parity.
Considering the facts and circumstances of the case, the nature of allegations, the gravity of the offence, the severity of punishment, the evidence appearing in the case, in particular, the fact that another bench of this Court has granted bail to a similarly circumstanced co-accused vide order dated 25.03.2019, the fact that in her testimony in Court, the prosecutrix has spoken in wholesomely exculpatory words, but without expressing any opinion on merits, this Court, finds it to be a fit case for bail.
The bail application, accordingly, stands allowed.
Let the applicant Mohd. Pasa involved in Case Crime No. 144 of 2017 (Special Case No. 73 of 2017, State of U.P. vs. Danish & Others), under Sections 376-D I.P.C. & 5G/6 POCSO Act, P.S. Jankpuri, District Saharanpur be released on bail on executing his personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:
i) The applicant shall not tamper with the prosecution evidence.
ii) The applicant shall not threaten or harass the prosecution witnesses.
iii) The applicant shall appear on the date fixed by the trial court.
iv) The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission.
v) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade such person from disclosing facts to the Court or to any police officer or tamper with the evidence.
In case of default of any of the conditions enumerated above, the complainant would be free to move an application for cancellation of bail before this Court.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. It is further clarified that the trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
Order Date :- 26.8.2019 BKM/-