Court No. - 78
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28999 of 2019 Applicant :- Mujahid And Another Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Nasiruzzaman Counsel for Opposite Party :- G.A.,Lokendra Pratap Singh
Hon'ble Mrs. Manju Rani Chauhan,J.
Counter affidavit filed on behalf of the complainant in Court today is taken on record.
Heard Mr. Nasiruzzaman, learned counsel for the applicant, P.K. Shahi, learned counsel for the State and Mr. Lokendra Pratap Singh, learned counsel for the complainant as well as perused the material on record.
The present bail application has been filed by the applicants- Mujahid and Fakhruddin with a prayer to enlarge them on bail in Case Crime No. 121 of 2019, under Sections 323, 504, 506, 354 I.P.C. and 8 POCSO Act, Police Station-Jalesar, District- Etah, during the pendency of the trial.
It has been argued by learned counsel for the applicants that for the alleged incident dated 24th April, 2019, the present first information report has been lodged on 29th April, 2019 by Sonu i.e. cousin brother of the victim, namely, Kumari Neeraj against Mujahid and Fakhruddin (applicants herein) i.e. after five days from the date of alleged incident for which no plausible explanation has been given, which makes the prosecution case doubtful. In the first information report, it has been alleged that on 24th April, 2019 at 09:00 p.m., when the victim was coming from her plot on the way near vacant plot of one Nem Singh, both the accused persons with bad intention caught hold of hand of the victim and tried to commit indecent act with her, on her shouting when the informant reached, they abused and beat her. On noise of shouting when the villagers came they ran away. It has further been argued by the learned counsel for the applicant that in the statements of the victim recorded under Section 161 and 164 Cr.P.C., there are huge variations,. which also makes the prosecution case doubtful. It has further been argued that the real fact is that the victim was in affair with applicant no.2 and at the time of incident, she had gone to meet him but unfortunately, the informant also reached there and saw them. Since the informant does not like the applicant no.2, he has lodged the present first information report falsely implicating the applicant no.2 and applicant no.1 who is his real uncle. There is no public or independent witness from which it is established that the applicants are involved in the commission of the alleged incident. They are innocent. The applicants have no criminal antecedents to their 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 applicants are enlarged on bail, the applicants shall not misuse the liberty of bail. The applicants are in jail since 30th April, 2019.
Per contra learned A.G.A. and the learned counsel for the informant has opposed the bail prayer of the applicants 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 applicants are released on bail they will again indulge in similar activities and will misuse the liberty of bail. However, the learned A.G.A. and the learned counsel for the informant could not dispute the factual submissions as urged by the learned counsel for the applicants.
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 applicants 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 applicants shall file an undertaking to the effect that they 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 applicants 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 of the Indian Penal Code.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure their presence proclamation under Section 82 Cr.P.C. is issued and the applicants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicants 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 applicants 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 them in accordance with law.
(Manju Rani Chauhan, J.) Order Date :- 30.7.2019 Sushil/-