Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 22983 of 2017 Applicant :- Obinna Osuagwu Opposite Party :- State Of U.P.
Counsel for Applicant :- Mohd. Afzal,Vidit Narayan Mishra Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of Obinna Osuagwu in connection with Case Crime No. 670 of 2016 under Sections 376, 342, 379 IPC, P.S. Kasna, District Gautam Budh Nagar.
Heard Sri Vidit Narayan Mishra, learned counsel for the applicant and Sri Saqib Meezan, learned AGA along with Sri Vivek Dubey, learned counsel on behalf of the State.
The submission of learned counsel for the applicant is that he has been falsely implicated in the present crime; that it was a relationship of consent that has been reported as a rape; that to the above end, the learned counsel for the applicant has taken the Court through the statement of the victim recorded under Section 164 Cr.P.C. and under Section 161 Cr.P.C.; that in the submission of learned counsel for the applicant there is no progress in the trial which is not likely to see an early end where the applicant is in jail as an under trial since 16.09.2016; that the applicant is in India on a valid passport and on a job visa and is working with a respectable establishment in NOIDA but in the present crime he is incarcerated which entitles him to bail pending trial.
Learned AGA has opposed the prayer for bail. He submits that a reading of the statement under Section 164 Cr.P.C. clearly discloses the commission of an offence under Section 376 D IPC; that the statement of the prosecutrix is clear and categorical and above all the learned AGA submits that the applicant is a foreign national and releasing him on bail might be a perilous proposition notwithstanding whatever amount of bond or the extent of heavy surety he is asked to furnish.
Learned counsel for the applicant in a limited rejoinder has submitted that the prosecutrix has already left the country and she is also a foreign national of Kenya and is not available to depose at the trial; and, in case a direction to expedite trial is given it may be fruitless while the applicant is languishing in jail since 16.09.2016.
Considering the overall facts and circumstances, the nature of the allegation, the gravity of the offence, the statement of the prosecutrix under Section 164 Cr.P.C., the fact that he is a foreign national, a citizen of Nigeria who in the opinion of the Court may intentionally jump bail and make it back to his country in some way or other as he has no moorings in this country but without expressing any opinion on merits, this Court does not find it to be a fit case for bail.
The bail application, accordingly, stands rejected at this stage.
However, looking to the fact that the applicant is in jail for a period of a year and a half by now as an under trial and the case to the best of the information available to the counsel for the applicant has not yet been committed, it is directed that the Magistrate where the case is pending shall commit the case within 15 days next from the date of receipt of a copy of this order which shall be forwarded by the Office forthwith through the C.J.M., Gautam Budh Nagar. The trial Court upon committal of the case, if not already committed, from the date of receipt of a copy of this order shall proceed with the trial and conclude the same within a period of six months positively in accordance with Section 309 Cr.P.C. and in view of principle laid down in the recent judgment of Hon'ble Supreme Court in the case of Vinod Kumar vs. State of Punjab reported in 2015 (3) SCC 220, if there is no legal impediment. .
It is further directed that the trial court in order to ensure the presence of the prosecutrix shall send out summons through the prescribed mode of service upon foreign nationals in a foreign country by all urgent means of communication requiring her to appear to testify on the date fixed in the summons. In case, despite service of summons the prosecutrix does not appear, the trial court will not adjourn the proceedings on that ground and will bring the trial to an end within the stipulated time schedule. So far as the other witnesses are concerned who are domestically available in case they do not respond to the first summons issued immediate coercive processes shall be issued and their attendance ensured.
It is further provided that once a witness appears, he / she will not be discharged until his / her evidence is concluded.
Let a copy of the order be certified to the court concerned for necessary compliance.
Order Date :- 30.3.2018 Deepak