Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21269 of 2021 Applicant :- Parvez Alam Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mohammad Zakir Counsel for Opposite Party :- G.A.,Shravan Kumar Pandey,Shyam Narain Pandey
Hon'ble Samit Gopal,J.
Heard Sri Mohammad Zakir, learned counsel for the applicant, Sri Balram Bind, Advocate holding brief of Sri Shravan Kumar Pandey, learned counsel for the first informant and Sri B.B. Upadhyay,, learned A.G.A. 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- Parvez Alam, seeking enlargement on bail during trial in connection with Case Crime No. 1079 of 2019, under Sections 363, 366, 368, 376-D I.P.C. and 4 POCSO Act, registered at Police Station Kotwali Nagar, District Bulandshahr.
Learned counsel for the applicant argued that the applicant is neither named in the first information report nor in the statements of first informant and the victim recorded under Section 161 Cr.P.C. Subsequently, the name of the applicant surfaces in the case for the first time, in the statement of the victim recorded under Section 164 Cr.P.C. which was recorded on 03.03.2020. It is argued that the implication of the applicant in the present case, is false and incorrect. It is further argued that although in the first information report, the date of birth of the victim has been given as 01.01.2005 and as per the same, she would be a minor girl aged about 14 years and 10 months but as per the certificate of the Chief Medical Officer, Bulandshahr, the copy of which is annexed as Annexure- 5 to the affidavit, her age has been opined to be of 18-19 years and as such, she is a major. It is further argued that co-accused Aamil, who is named in the first information report and there are specific allegations against him, has been granted bail by a co-ordinate Bench of this Court vide order dated 16.12.2020 passed in Criminal Misc. Bail Application No. 26435 of 2020, the copy of the said order is annexed as Annexure-8 to the affidavit. It has also been pointed out that the applicant is not having any criminal history as stated in para 32 of the affidavit and he is in jail since 25.02.2021.
Per contra, learned A.G.A. and learned counsel for the first informant have opposed the prayer for bail and argued that the victim is a minor. The other arguments as raised, could not be disputed by both the learned counsels.
After having heard the learned counsel for the parties and perusing the record, it is apparent that co-accused Aamil, who has been named in the first information report and his naming is consistent throughout, has been granted bail by a co- ordinate Bench of this Court. As per the radiological age of the victim, she is a major.
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- Parvez Alam, 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 AS Rathore (Samit Gopal,J.)