Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29345 of 2021 Applicant :- Naushad Opposite Party :- State of U.P. Counsel for Applicant :- Madan Singh Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Sri Pravesh Kumar Yadav, Advocate appears and states that he shall be filing his Vakalatnama on behalf of the first informant in the office within next two days.
If any such Vakalatnama is filed, office shall restore the same in the file and make a note in this regard in the order sheet.
Heard Sri Madan Singh, learned counsel for the applicant, Sri Pravesh Kumar Yadav, learned counsel for the first informant, Sri S.B. Maurya, learned AGA 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 Naushad, seeking enlargement on bail during trial in connection with Case Crime No. 146 of 2021, under Section(s) 376, 506, 120B I.P.C. registered at P.S. Afzalgarh, District Bijnor.
Learned counsel for the applicant argued that although the applicant is named in the F.I.R. and there is an allegation of committing rape upon the victim but the said allegation is false and without any evidence. It is argued that falsity of the prosecution case is apparent from the fact that in the F.I.R. the age of the victim has been stated by her mother to be 17 years whereas, as per High School Marks Sheet of the victim, copy of which has been annexed as annexure no. 6, her date of birth is 20.6.2001 as such she is about 20 years of age and is a major girl. It is further argued that the victim in her statement recorded under Section 161 Cr.P.C., copy of which is annexure no. 3 to the affidavit, has stated that the applicant administered acid to her is false and is a concoction whereas in her statement recorded under Section 164 Cr.P.C. she has not mentioned of any such act been done by the applicant.
It is argued that as per own versions of the victim in her statements recorded under Sections 161 and 164 Cr.P.C. she has stated that she was knowing the applicant since last eight months. Further she has stated her age to be of 20 years and has alleged that the applicant had been committing rape upon her since 2.5.2021. It is argued that the present F.I.R. has been lodged after a delay of about 22 days without any plausible explanation. It is argued that the applicant has no other criminal antecedents as stated in para-31 of the affidavit and is in jail since 29.5.2021.
Per contra, learned AGA and learned counsel for the first informant opposed the prayer for bail and argued that the applicant is named in the F.I.R. and has been assigned the role of committing rape upon the victim.
After having heard learned counsels for the parties and perusing the record, it is apparent that the victim is a major girl aged about 20 years as per her High School Marks Sheet, version in both her statements have variances in the each other, the medical examination does not corroborate the prosecution story.
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- Naushad, 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 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.
Order Date :- 12.8.2021 Naresh (Samit Gopal,J.)