Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20331 of 2018 Applicant :- Najbul Hasan Opposite Party :- State Of U.P. Counsel for Applicant :- Shami Ullah Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard Sri Shamiullah, learned counsel for the applicant, learned AGA and perused the record.
Contention raised at the Bar is that the applicant has been falsely implicated in the present case. It has been further submitted that the FIR, dated 20.05.2017, for the occurrence dated 20.03.2017, i.e., after two months of the alleged incident, was registered by the father of the victim, under sections 363 and 366 IPC against the sole applicant with allegation that her minor daughter, aged about 16 years, was enticed away by the accused applicant- Najbul Hasan and while joining the company of the applicant she took away cash of Rs. 35,000/- along with some valuable gold with her and is missing since then. The victim girl was eventually recovered on 21.05.2017. In her statement recorded on 21.05.2017, under section 161 Cr.P.C., the victim stated that she was well acquainted with the applicant, joined the company of the applicant out of her sweet will and accord, went with him to Moradabad and is living with him as husband and wife in a rented house. She refuted the allegation of enticing her away by the applicant therein. On the similar lines, the alleged victim in her statement recorded under section 164 Cr.P.C., reiterated her version though there are certain embellishments in it while confirming her age to be of 18 years at the relevant point of time. According to the radiological report, the victim was opined to be about 20 years of age and she further refused to get herself medically examined. On the conjoint reading of both the statements of the victim, her age, refusal to get herself medically examination for the confirmation of the allegation of commission of rape and the conduct of the alleged victim in entirety, she appears to be a consenting party. The applicant is in jail since 22.12.2017, having no criminal antecedents to his credit.
Learned AGA opposed the prayer for bail but could not dispute the aforesaid facts and the legal submissions as argued by the learned counsel for the applicant.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties and without expressing any opinion on merits of the case, this Court is of the view that the applicant has made out a case for bail.
Let the applicant Najbul Hasan, involved in Case Crime No. 167 of 2017, under sections 363, 366, 376 IPC, 4 of the Protection of Children from Sexual Offences Act and 3(1)(X) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, P.S. Shahi, District Bareilly be released on bail 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 IPC.
(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 IPC.
(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.
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.
Order Date :- 29.5.2018 shailesh