Court No. - 28
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32448 of 2019 Applicant :- Pooran Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Narayan Singh(Kushwaha) Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Narayan Singh Kushwaha, learned counsel for the applicant and the learned A.G.A. for the State.
This application for bail has been filed by the applicant Pooran seeking his enlargement on bail in Case Crime No. 1171 of 2018, under Sections 363, 366, 376, 313. 120B, 328 I.P.C. and Section 4 Protection of Children From Sexual Offences Act, Police Station Kotwali Nagar, District Etah, during the pendency of the trial in the above mentioned case crime number.
Learned counsel for the applicant submits that the Court below while rejecting the bail application of the applicant has returned a finding that as per the prosecution case, date of birth of the prosecutrix is 12.8.2000. The date of incident is 16.8.2016 as such on the date of incident, the age of the prosecutrix was more than 17 years. In view of the above , the mandatory provisions of Section 439 Cr. P.C. are not required to be complied with in the present case.
According to the prosecution story, the incident is alleged to have occurred on 16.8.2016, whereas the F.I.R. was lodged on 3.10.2018 and was registered as Case Crime No. 1171 of 2018, under Sections 363, 366, 376, 313. 120B, 328 I.P.C. and Section 4 Protection of Children From Sexual Offences Act, Police Station Kotwali Nagar, District Etah Subsequent to the aforesaid F.I.R., the statement of the prosecutrix was recorded under section 161 Cr. P. C. on 4.9.2018, followed by her statement under section 164 Cr. P. C. on 6.10.2018. On the basis of the statement of the prosecutrix section 376 IPC and section 3/4 POCSO Act were added.
Learned counsel for the applicant submits that in the F.I.R. dated 3.10.2018, three persons namely Pushpendra, Pooran and Siya Devi, have been named as the named accused. The co- accused Siya Devi has been enlarged on bail, vide order dated 3.6.2019 by this Court. Learned counsel for the applicant further submits that as per the statement of the prosecutrix as recorded under sections 161 and 164 Cr. P. C. the entire allegations are pointed against the co-accused Pushpendra and not the present applicant. Thus, the submission is that even if entire allegations made in the F.I.R. are treated to be true, the applicant is liable to be enlarged 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 urged by the learned counsel for the applicant.
Having heard the learned counsel for the applicant and the learned A.G.A. for the State, complicity of the accused, nature of the offence and without expressing any opinion on merits of the case, I am of the view that the applicant has made out a case for bail.
Let the applicant-Pooran 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 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 counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under section 229-A I.P.C..
(iii) 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.
(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 him 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.
Order Date :- 22.8.2019 HSM