Court No. - 72
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 22667 of 2021 Applicant :- Pushpendra Singh Tomar Opposite Party :- State of U.P.
Counsel for Applicant :- Dhirendra Kumar Agrahari,Sudhir Mehrotra Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicant, learned Additional Government Advocate representing the State and perused the record of the case.
The instant bail application has been filed on behalf of the applicant with a prayer to release him on bail in Case Crime No. 37 of 2021, under Sections 366, 376, 506 and 34 IPC, police station Kotwali Nagar, district Bulandshahr during the pendency of trial.
As per prosecution version, in brief, informant Mohit Kumar, who is uncle of the victim, has lodged the first information report on 11.1.2021 against Pushpendra Singh Tomar, the present applicant, Yogendra and Ms. Vishnu Sarki for the offence under Section 366 IPC alleging inter alia therein that on 11.1.2021 his niece, namely, Parthi Chaudhrey @ Menu aged about 19 years old and her younger sister Dipti aged about 15 years have left his house for the Branch of H.D.F.C. Bank, Bulandshahr for linking the Aadhar Card of Dipti with the bank account, but on the same day at about 4.00 p.m. the younger niece-Dipti of the informant returned home alone and narrated that her elder sister Parthi Chaudhrey @ Menu went along with two men and one lady (accused persons) towards the old bus stand, who, in the previous night, stayed in the Shipra hotel leaving her near the Kale Aaam intersection. The younger sister of victim also stated that she has tried her best to stop the victim from going with the accused persons.
It is argued by the learned counsel for the applicant that the applicant is absolutely innocent and has falsely been implicated in the present case. It is further argued by learned counsel for the applicant that on 13.1.2021 the victim was recovered from the possession of the applicant, and thereafter, her statements under Sections 161 and 164 Cr.P.C. were recorded, in which she has disclosed that the victim and applicant came in proximity with each other while playing Ludo King Apps on internet. She has further stated that the applicant had made physical relation with her on the point of life threat. It is next submitted that the victim has refused for her internal medical examination, whereas her statement was recorded by the Medical Officer of the K.M.C. Bulandshahr on 13.1.2021, in which she has disclosed that she has travelled with the applicant upto to Delhi and from where they were going to Gwalior by train, but in the way she was apprehended by the police at Agra. It is also pointed out that as per certificate of High School examination, the date of birth of the victim is 8.1.2001 and, as such, on the date of alleged incident the victim was major. Lastly, it is submitted that considering the facts and circumstances of the case, only conclusion can be drawn that the victim was major and she was a consenting party. The applicant has no criminal history to his credit. The applicant is languishing in jail since 13.1.2021 and in case he is enlarged on bail he will not misuse the liberty of bail.
Per contra learned A.G.A. has opposed the bail prayer of the applicant by contending that the victim has gone with the applicant under threat.
As per high school certificate, the victim is major aged about 20 years of age and she has travelled upto Delhi along with the applicant, but neither raised any alarm for her rescue nor made any sincere effort to get herself free from the clutches of the applicant. In this view of the matter, the possibility of the victim being consenting party cannot be ruled out.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, I am of the view that the applicant has made out a case for bail. Hence, the bail application is hereby allowed.
Let the applicant Pushpendra Singh Tomar 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 dates 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 of the Indian Penal Code.
(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. is issued and the 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 of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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 applicant shall file computer generated copy of this order downloaded from the official website of High Court Allahabad.
(vi) The computer generated copy of this order shall be self attested by the counsel of the party concerned.
(vii) 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.
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.
Order Date :- 29.7.2021 Sumaira Digitally signed by Justice Sanjay Kumar Singh Date: 2021.07.29 16:58:41 IST Reason: Document Owner Location: High Court of Judicature at Allahabad