Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26755 of 2020 Applicant :- Parvez Opposite Party :- State of U.P. and Another Counsel for Applicant :- Santosh Kumar Mishra,Amit Kumar Srivastava,Krishna Kumar Shukla,Vikas Rana Counsel for Opposite Party :- G.A.,Mohit Gautam
Hon'ble Samit Gopal,J.
Heard Sri Amit Kumar Srivastava, learned counsel for the applicant, Sri Sanjay Kumar Singh, learned counsel for the State and perused the material on record.
Sri Mohit Gautam, learned counsel for the first informant is not present even when the matter has been taken up in the revised list.
This is second bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Parvez, seeking enlargement on bail during trial in connection with Case Crime No. 431 of 2019, under Sections 363, 366, 376-D IPC and Section 6 POCSO Act, registered at P.S. Hafijganj, District Bareilly.
The first bail application of the applicant was dismissed for non prosecution by this Court vide order dated 29.07.2020 passed in Crl. Misc. Bail Application No. 18918 of 2020 (Parvez Vs. State of U.P. and another).
The prosecution case as per the First Information Report lodged on 20.12.2019 by Brijesh Kumar under Sections 363, 366 IPC naming the applicant and two other persons namely Najim and elder brother of Najim is that his daughter aged about 11 years was enticed by the accused persons whereas Najim used to pressurize her for marriage. On 19.12.2019 at about 08:30 pm, all the three accused persons including the applicant allured her and enticed her away. They were in the process of taking his daughter to Jaipur by bus wherein she made an excuse to ease herself and ran away from there. Moti Lal had seen the accused persons taking away the prosecutrix .
Learned counsel for the applicant argued that the prosecutrix in her statement recorded under Section 161 Cr.P.C. she has stated that the applicant used to meet her at the gate of her school and used to tell her that he was love in with her. He used to meet her and tell that he will marry with her but she refused. Subsequently, the accused persons threatened her and were forcibly taking her to Jaipur after which she made an excuse for easing herself and ran away.
It is further argued that subsequently the statement recorded under Section 164 Cr.P.C. of the prosecutrix was recorded in which she stated that the accused persons came to her house and stated that her father met with an accident on which she accompanied them and then they committed wrong act on her. They gave her water to drink and assaulted her. She got blood on her clothes, after that they tried to take her on bus but she made an excuse of easing herself and ran away.
Learned counsel for the applicant argued that the prosecutrix was produced before the doctor wherein she did not state of any act of physical relationship being done on her. Even, the doctor did not find any sign of rape being committed on her. It is further argued that the applicant has been falsely implicated in the present case. The medical evidence does not corroborate the prosecution story regarding the gang rape committed upon the prosecutrix, has been stated for the first time in her statement recorded under Section 164 Cr.P.C. which is conspicuously missing in the First Information Report, statement under Section 161 Cr.P.C. of the first informant and the prosecutrix. It is further argued that there has been some enmity between the farther of the applicant and the first informant due to which he has been falsely implicated in the present case, para 13 has been placed before the court to buttress the said argument. He further argued that the applicant has no criminal history as stated in para 12 of the affidavit in support of the bail application and is in jail since 25.12.2019.
Per contra, learned counsel for the State opposed the prayer for bail and argued that in the statement under Section 164 Cr.P.C. There is an allegation of gang rape being committed upon the prosecutrix by the applicant and two other co-accused persons and as such he is involved in the present case.
After having heard learned counsels for the parties and perusing the records, it is evident that although the applicant is named in the First Information Report but there is no allegation of rape or indulging in any physical act with the prosecutrix in the First Information Report, statement under Section 161 Cr.P.C. of the first informant and the prosecutrix. Subsequently, the statement recorded under Section 164 Cr.P.C. of the prosecutrix she states that gang rape have been committed upon her. The medical examination does not corroborate with 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 Parvez, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties (one of the sureties of the applicant will be his family member) 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 :- 26.10.2021 M. ARIF (Samit Gopal, J.)