Court No. - 28
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31057 of 2019 Applicant :- Parvesh Kumar Opposite Party :- State Of U.P.
Counsel for Applicant :- Ajay Kumar Jagdish Counsel for Opposite Party :- G.A.,Sandeep Tripathi
Hon'ble Rajeev Misra,J.
Heard Mr. Ajay Kumar Jagdish, learned counsel for the applicant and the learned A.G.A. for the State.
This bail application has been filed by the applicant Parvesh Kumar, seeking his enlargement on bail in Case Crime No. 469 of 2018 under Sections 366, 376 IPC, P.S. Gangoh, District Saharanpur during the pendency of the trial.
In respect of an incident which occurred on 25.5.2019, an F.I.R. dated 28.5.2019 was lodged by Prakash, the father of the prosecutrix, with the police of P.S. Gangoh, District Saharanpur, which was registered as Case Crime No. 0469 of 2019, under section 366 IPC. In the aforesaid F.I.R. two persons namely, Sachin and Vipin who are real brothers were nominated as the named accused. Subsequent to the F.I.R. dated 28.5.2019, the prosecutrix was recovered on 30.5.2019. Thereafter, the statement of the prosecutrix was recorded under section 161 Cr.P.C. on 30.5.2019. Thereafter, the statement of the prosecutrix was recorded under section 164 Cr.P.C. on 3.6.2019. Subsequent to the aforesaid statement of the prosecutrix, section 376 IPC was added.
Learned counsel for the applicant submits that the applicant is innocent and he has been falsely implicated in the above mentioned case crime number. The applicant is not named in the F.I.R. The prosecutrix is a major, as is admitted to the learned counsel for the complainant. According to the learned counsel for the complainant, the age of the prosecutrix is more than 21 years. He thus submits that there is a clear consent on the part of the prosecutrix, as is evident from her statement under section 161 Cr.P.C. However, subsequently, the prosecutrix has changed her stand in her statement under section 164 Cr.P.C, for which there is no explanation. The applicant is in jail since 5.6.2019, wrongly mentioned as 18.4.2019. On the aforesaid factual premise, it is urged that applicant is liable to be enlarge on bail.
Per contra, the learned A.G.A. has opposed the prayer for bail. However, he could not dispute the factual and legal submissions raised by learned counsel for the applicant.
Having heard the learned counsel for the applicant and the learned A.G.A. for the State and upon perusal of the material brought on record as well as the complicity of the applicant and without making any comment on the merits of the case, I find that applicant has made out a case for bail.
Let the applicant Parvesh 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/SHE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, 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 THE HIM/HER 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/her 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 Arshad