1. Heard Sri Upendra Prakash Pathak, learned counsel for the applicant as well as learned Additional Government Advocate for the State of U.P. as well as Sri Mahip Kumar Singh, learned counsel for the complainant, and perused the record.
2. The present bail application has been filed on behalf of the applicant seeking bail in pursuance to the First Information Report registered as Case Crime No. 95 of 2021, under Sections 363, 366, 376 I.P.C. and Section 3/4 of Protection of Children from Sexual Offences Act, Police Station - Jaidpur, District - Barabanki.
3. Submission of learned counsel for the applicant is that first information report of this case has been lodged by the father of the prosecutrix. He has alleged in the first information report that his daughter is missing since 16th March, 2021 and in all probability, it is the applicant who has enticed his daughter and taken away her with him somewhere. Subsequently, the prosecutrix was recovered and her statements under Section 161 Cr.P.C. was recorded. In which she has stated that due to the fact that when her mother was not at home she has left the house on her own free will and had gone to Lucknow by bus where she has called the applicant and they lived together till she was apprehended by the Police.
4. It is next submitted by learned counsel for the applicant that subsequently, statement of prosecutrix under Section 164 Cr.P.C. was recorded before the Magistrate, wherein she has again stated that she had gone with the applicant voluntarily and they lived together till the time she was apprehended. In her either of the statements recorded under Section 161/164 Cr.P.C. the prosecutrix has not mentioned that she and the applicant had any sexual relationship and therefore at this stage it cannot be said as to whether the applicant sexually assaulted the prosecutrix. From the perusal of the medical report of the prosecutrix, it is not discernible whether she was sexually assaulted by the applicant, therefore no offence under Section 376 I.P.C. is made out against the applicant at this stage. It is lastly submitted that the applicant is in jail since 28.03.2021.
5. Learned A.G.A. as well as learned counsel appearing for the complainant have opposed the prayer for grant of bail by submitting that since the age of the prosecutrix is fifteen years, thus she is minor, and this fact has to be taken into consideration while deciding the bail application.
6. Considering the facts and circumstances of the case, perusing the record and also considering the nature of allegations, arguments advanced by the learned counsel for the parties and keeping in mind the facts that during investigation statements of prosecutrix under Sections 161 and 164 Cr.P.C. were recorded and her both the statements indicate that she had gone with the applicant on her own free will, there is no mention of any sexual assault on her by the applicant. It is contended on behalf of applicant that in the light of the aforesaid statements of prosecutrix, no offence under Section 376 I.P.C. is made out at this stage and coupled with the fact that applicant has spent nearly four months in judicial custody, without expressing any opinion on the merit of the case, I find it to be a fit case for granting bail.
7. Let applicant Raja @ Dharmendra Yadav be released on bail in Case Crime No. 95 of 2021, under Sections 363, 366, 376 I.P.C. and Section 3/4 of Protection of Children from Sexual Offences Act, Police Station - Jaidpur, District - Barabanki, on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the Magistrate/Court concerned, subject to following conditions :-
(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.
8. In case of breach of any of the above conditions, the Court below shall be at liberty to cancel the bail and proceed against the applicant in accordance with law.
9. This order shall not influence the trial Court for proceeding with the trial.
10. The application stands disposed of.
11. The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by him alongwith a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked before the concerned Court/Authority/Official.
12. The concerned Court/Authority/Official shall verify the authenticity of the 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 :- 30.7.2021 A. Verma (Alok Mathur, J.)