Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29093 of 2021 Applicant :- Priyanshu @ Rishu Agrahari Opposite Party :- State of U.P.
Counsel for Applicant :- Rajeev Upadhyay Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Notice was issued to the opposite party no.2 vide order dated 12.08.2021. As per the office report dated 23.10.2021, a report dated 04.09.2021 of C.J.M. concerned has been received stating therein that notice has been served on the opposite party no.2.
The perusal of the said report shows that notice has been served personally on the opposite party no.2. Further, a perusal of the report of concerned police station, it is clear that notice has been served on the opposite party no.2 on 02.09.2021.
No one appears on behalf of the opposite party no.2 even when the matter has been taken up in the revised list.
Heard Sri Rajeev Upadhyay, learned counsel for the applicant, Sri Bade Lal Bind, learned counsel 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 Priyanshu @ Rishu Agrahari, seeking enlargement on bail during trial in connection with Case Crime No. 61 of 2021, under Sections 363, 366, 376 I.P.C. and Section 3/4 POCSO Act, registered at Police Station Phoolpur, District Azamgarh.
The prosecution case as per the First Information Report lodged by Smt. Nisha Gaur on 27.04.2021 under Sections 363, 366 IPC naming the applicant as the only accused therein is that her daughter was learning the work in a beauty parlor, there was a coaching center adjacent to the beauty parlor in which the applicant was working. Both the persons came in contact with each other. The applicant allured the daughter of the first informant and on 23.04.2021 at about 04:00 pm, when she had gone of harvest the crop of wheat, the applicant enticed away her daughter.
Learned counsel for the applicant argued that the prosecution case has stated in the First Information Report is false and has been falsely implicated in the present case. It is argued that the prosecutrix in her statement recorded under Section 161 Cr.P.C. and 164 Cr.P.C. has although stated that she was allured by the applicant and taken to Ambedkar Nagar where they were living in a room and they solemnized marriage in a temple where the applicant did illegal acts with her. It is further argued that the Chief Medical Officer, Azamgarh has opined the age of the prosecutrix to be above 18 years.
Learned counsel for the applicant has placed the statement of the prosecutrix recorded in the trial which is annexed at page 11 to the supplementary affidavit and has argued that she has stated in the examination-in-chief that the applicant had allured her and enticed her away and they were living in a room like husband and wife and they married with each other in a temple. The applicant did illegal act with her there. They were in the process going to Mumbai but they were arrested. In the cross- examination by the defense, she has stated that the applicant did not do any illegal acts with her. She did not run away with the applicant. It is argued that the prosecutrix is a major and she is aged about 19 years as stated by her before the trial court in the cross examination. She went with the applicant out of her own sweet will and lived two days in a rented room at a different place which she did not resist. She is a consenting party. He further argued that the applicant has no criminal history as stated in para 15 of the affidavit and is in jail since 30.04.2021.
Per contra, learned counsel for the State opposed the prayer for bail and argued that the applicant is named in the First Information Report and in her statement under Section 161 Cr.P.C. and 164 Cr.P.C. There is an allegation of enticing away the prosecutrix and committing rape.
After having heard learned counsels for the parties and perusing the records, it is evident that the age of the prosecutrix has been opined by the Chief Medical Officer, Azamgarh to be above 18 years. She went with the applicant to a different place and stayed in a room without any resistance. She states that she married to the applicant in a temple.
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 Priyanshu @ Rishu Agrahari, 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 :- 25.10.2021 M. ARIF Digitally signed by Justice Samit Gopal Date: 2021.10.26 09:50:27 IST Reason: Document Owner Location: High Court of Judicature at Allahabad