Court No. - 28
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31970 of 2019 Applicant :- Mulayam Kumar Opposite Party :- State Of U.P.
Counsel for Applicant :- Kuwar Ritesh Kumar Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Kuwar Ritesh Kumar, learned counsel for the applicant and learned A.G.A. for the State.
2. This application for bail has been filed by applicant- Mulayam Kumar seeking his enlargement on bail in Case Crime No. 077 of 2019 under Sections 363, 376 I.P.C. and Sections 3/4 POCSO Act, P.S.-Nonahara, District-Ghazipur, during the pendency of the trial.
3. At the very outset, learned counsel for the applicant submits that the date of birth of the prosecutrix as recorded in her High School Certificate is 15.07.2001. The incident has occurred on 29.05.2019. As such, on the date of incident, the age of the prosecutrix was more than seventeen years. Consequently, mandatory provisions of Section 439 I.P.C. are not required to be complied with in the present application.
4. Perused the record.
5. In respect of an incident, which occurred on 29.05.25019, an F.I.R. dated 02.06.2019 was lodged by Ramniwash Ram, father of the prosecutrix, which was registered as Case Crime No. 0077 of 2019 under Sections 363, 376 I.P.C. and Sections 3/4 POCSO Act, P.S.-Nonahara, District-Ghazipur. In the aforesaid F.I.R. solitary accused Mulayam Kumar was nominated as the named accused. According to the allegations as unfolded in the F.I.R., it was alleged that the applicant has taken away the daughter of the first informant.
6. Pursuant to the F.I.R. dated 02.06.2019, the prosecutrix was recovered on 03.06.2019. Thereafter, her statement under Section 161 Cr.P.C. was recorded on 03.06.2019 followed by her statement under Section 164 Cr.P.C. Subsequent to the statements of the prosecutrix as referred to above, Section 376 I.P.C. and Sections 3/4 POCSO Act were added.
7. Learned counsel for the applicant submits that admittedly the age of the prosecutrix is more than 17 years as is evident from the High School Certificate of the prosecutrix. He then submits that the prosecutrix is a consenting party, which is evident from her statements recorded under Section 161 Cr.P.C. as well as under Section 164 Cr.P.C. On the aforesaid factual premise, learned counsel for the applicant submits that the applicant is liable to be enlarged on bail.
8. Per contra, the learned AGA has opposed the prayer for bail. However, the learned A.G.A. could not dispute the factual and legal submission made by the learned counsel for the applicant.
9. Having heard the learned counsel for the applicant, learned A.G.A. for the State and upon consideration of the allegations made in the F.I.R. as well as the complicity of the applicant but without expressing any opinion on merits of the case, I am of the view that the applicant has made out a case for bail. Accordingly, the bail application of the applicant is allowed.
10. Let the applicant-Mulayam Kumar be released on bail in the aforesaid case crime number 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 I.P.C.
(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 I.P.C.
(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.
11. 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 and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 21.8.2019 YK