Court No. - 28
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 18611 of 2016 Applicant :- Naushad Opposite Party :- State Of U.P.
Counsel for Applicant :- Kandarp Srivastava,Kaustubh Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Kaustubh Srivastava, the learned counsel for the applicant and the learned A.G.A. for the State.
2. Counter affidavit filed on behalf of the opposite party by the learned A.G.A. in Court today, is taken on record.
3. This application for bail has been filed by the applicant- Naushad seeking his enlargement on bail in Case Crime No. 121 of 2015, under Sections 363, 366, 376D, 120B I.P.C. and Sections 3/4 and 7/8 of the Protection of Children From Sexual Offences Act, Police Station-Phalwada District-Meerut, during the pendency of the trial of the above mentioned case crime number.
4. It transpires from the record that an F.I.R. dated 16.9.2015 was lodged by first informant Jai Prakash, father of the prosecutrix with Police Station Phalwada alleging therein that two persons namely Kallu, Naushad along with another unknown person had taken away his daughter Deepanjali. The case was registered as Case Crime No. 121 of 2015, under Sections 363, 366, 376D, 120B I.P.C. and Sections 3/4 and 7/8 of the Protection of Children From Sexual Offences Act, Police Station-Phalwada District-Meerut. The prosecutrix was recovered on 20.10.2015 from the possession of present applicant Naushad. Thereafter, her statement under section 161 Cr. P. C. was recorded, in which she named some of the accused persons, but no allegation of rape having been committed upon her was alleged. After expiry of a period of 13 days, the statement of the prosecutrix under section 164 Cr. P. C. was recorded, in which she implicated six persons including the present applicant and also alleged commission of rape upon her by the accused persons. The police upon completion of statutory investigation of the aforesaid case crime number in terms of Chapter 12 Cr. P. C. has submitted the charge sheet against six persons namely Kallu, Yamin, Momin, Julfikar, As Mohammad and the present applicant Naushad. Upon submission of the charge sheet, cognizance was taken by the Court concerned and case was committed to the Special Court, where it has been registered as S.S.T. No. 121 of 2015 (State Vs. Naushad and others). On date, P.W. 1 has been examined.
5. Learned counsel for the applicant submits that in the present case except for the present accused all other co-accused have been enlarged on bail. I have perused the photo copies of the bail orders in respect of other five accused. It is then submitted that as per the medical report, the age of the girl is 19 years and therefore she was not a minor on the date of the commission of the alleged criminality. On the aforesaid factual premise, it is thus urged that the applicant who has already undergone incarceration since 19.10.2015 is liable to be enlarged on bail.
6. Per contra, the learned AGA has opposed the prayer for bail. Placing reliance upon Annexure CA 2, which is photocopy of mark sheet of Class VII, of the prosecutrix, he submits that the prosecutrix was a minor, therefore, the bail application of the present applicant is liable to be rejected.
7. It is an undisputed fact that though the co-accused who have been assigned similar roles have already been enlarged on bail by this Court. Learned A.G.A. could not point out any such difference in the case of the present applicant and the other co- accused, on the basis of which bail should be denied to the present applicant. Consequently, the bail application of the present applicant is allowed.
8. Let the applicant-Naushad involved in Case Crime No. 121 of 2015, under Sections 363, 366, 376D, 120B I.P.C. and Sections 3/4 and 7/8 of the Protection of Children From Sexual Offences Act, Police Station-Phalwada District-Meerut, be enlarged on bail on his 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.
Order Date :- 31.7.2019 HSM