Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30932 of 2021 Applicant :- Monu Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shobhit Pathak Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Sri Pradeep Kumar Shah, Advocate appearing on behalf of the first informant states that he shall be filing his Vakalatnama in the office by tomorrow i.e. on 08.10.2021.
Office is directed to trace out the same and place it on record and make a note in the order-sheet regarding the same.
Heard Sri Shobhit Pathak, learned counsel for the applicant, Pradeep Kumar Shah, learned counsel for the first informant and Sri Anand Sagar Dube, learned counsel for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant-Monu, seeking enlargement on bail during trial in connection with Case Crime No. 131 of 2021, under Sections 363, 376, 506 I.P.C. and 3/4 POCSO Act, registered at Police Station Bilari, District Moradabad.
The FIR of the present case was lodged on 20.04.2021 under Section 363, 506 IPC by Jamuna Devi against the applicant and eight other accused persons stating therein that her daughter aged about 17 years is studying in B.Sc. Honors was washing her hands and feet in her double storied house on the ground floor whereon Monu, the applicant along with other co-accused persons came there, threatened her daughter and allured her and took her away in a four wheeler vehicle. They were seen by her devar Rajeev and other persons of the locality. She with other persons went to the house of the accused persons and requested for the return of her daughter on which the accused persons insulted and threatened her of police action against them.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the prosecutrix was recovered on 6.5.2021 and her statement under Section 161 Cr.P.C. was recorded wherein she stated that she went with the applicant to Haridwar and solemnized court marriage. On 19.04.2021, the applicant forcible took her and established physical relationship with her. It is further argued that subsequently her statement under Section 164 Cr.P.C. was recorded in which she states that she was having a liking with the applicant since last one and half years and they aloped and solemnized court marriage. The prosecutrix was produced before the doctor who refused her medical examination. She has married the applicant and said marriage has been registered before the Registrar Compulsory Registration Of Marriages, Haridwar on 30.04.2021. She was more than 20 years. It is argued while placing para 11 of the affidavit that the victim is residing in her matrimonial house along with her in-laws while her husband is in jail due to the present case. The present case is a case of elopement. It has also been pointed out that the applicant is not having any criminal history as stated in para 15 of the affidavit. The applicant is in jail since 06.05.2021.
Per contra learned counsel for the State opposed the prayer for bail. Learned counsel for the first informant argued that the victim is residing in the matrimonial house with her in-laws and her marriage has been duly registered as per law which is with the applicant.
After hearing the counsel for the parties and perusing the record, it is apparent that the prosecutrix refused her medical examination and as such there is no corroboration of allegation of rape through medical examination. She in her statement under Section 164 Cr.P.C. has stated that she went with the applicant as she was having a liking since long. The applicant and the prosecutrix have married each other. The prosecutrix is living in the matrimonial house with her in-laws.
Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
Let the applicant-Monu, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties (one of the sureties will be of family members) 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) 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.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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 I.P.C.
(v) 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 and the trial court may proceed against him under Section 229-A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
The bail application is allowed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
(Samit Gopal, J.) Order Date :- 7.10.2021 Gaurav