Court No. - 68
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14881 of 2021 Applicant :- Pawan Kumar Opposite Party :- State Of U.P And Another Counsel for Applicant :- Puneet Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Pachori,J.
Heard Sri Puneet Srivastava, learned counsel for the applicant, learned A.G.A. for the State and perused the record of the case. None is present on behalf of the informant/opposite party no.2.
Perusal of the order-sheet reveals that notice has been issued to the opposite party no. 2 which was duly served upon her. Despite sufficient service no one has appeared on behalf of her to oppose the present application.
The present bail application has been filed on behalf of applicant, Pawan Kumar with a prayer to release him on bail in Case Crime No. 210 of 2020, under Sections 363 & 366 I.P.C. and Section 17/18 Protection of Children From Sexual Offence Act 2012 (POCSO Act), Police Station- Gangeri, District- Aligarh, during pendency of trial.
It has been submitted by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. According to the first information report, on the date of incident the victim aged about 15 years went for call of nature but she did not return home and she also kept Rs.41,000/- and some ornaments from the house; the first information report has been lodged against one unknown person; the victim was recovered from the possession of co-accused Rahul @ Chumma and applicant's name has came into light for the first time on the statement of victim under Section 164 Cr.P.C. It is next submitted that the no specific role has been assigned against the applicant and the role of the applicant is distinguishable with the role of the co- accused Rahul @ Chumma. As per the judgment of Apex Court in S. Varadrajan Vs. State of Madras, AIR 1965 SC 942 as the victim herself left her house and went with the applicant.
She was not enticed away by the applicant. There is no criminal history of the applicant. Charge sheet has also been filed in the present case under Sections 363 & 366 I.P.C. and Section 17/18 POCSO Act and the applicant is no more required for the purpose of investigation.
It is next submitted that there is also no possibility of the applicant either fleeing away from the judicial process or tampering with the witnesses. The applicant, who is languishing in jail since 07.12.2020, undertakes that he will not misuse the liberty, if granted. It has also been pointed out that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.
Per contra learned A.G.A. has opposed the prayer for bail of the applicant. In case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.
It is settled position of law that bail is the rule and committal to jail is an exception in the case of State of Rajasthan Vs. Balchand @ Baliay (1977) 4 SCC 308, the Apex Court observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution and opined para 2 "The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the court. We do. not intend to be exhaustive but only illustrative." and considering the facts of the case and keeping in mind, the ratio of the Apex Court's judgment in the case of Gudikanti Narasimhulu And Ors vs Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, larger mandate of Article 21 of the constitution of India, the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused-applicant, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public/ State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail.
Let applicant, Pawan Kumar be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions-
1. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.
2. The applicant shall cooperate in the trial sincerely without seeking any adjournment.
3. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the petitioner along-with a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
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 :- 29.7.2021 Ishan