Court No. - 72
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21853 of 2021 Applicant :- Rajan Rajbhar Opposite Party :- State of U.P.
Counsel for Applicant :- Anil Kumar Dubey,Shailendra Kumar Rai Counsel for Opposite Party :- G.A.,Abhitab Kumar Tiwari
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicant; learned Additional Government Advocate representing the State; Shri Abhitab Kumar Tiwari, learned counsel for the informant 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. 0011 of 2021, under Sections 363, 366, 376 I.P.C. & Section 3/4 of Protection of Children from Sexual Offences Act, 2012, Police Station-Saidpur, District-Ghazipur during the pendency of trial.
As per the prosecution case in brief, informant Shivnath Rajbhar lodged F.I.R. on 07.01.2021 regarding an incident which took place on 26.12.2020 against the applicant Rajan Rajbhar and co-accused Dinesh Rajbhar alleging inter alia that on 26.12.2020 at about 10:00 O'clock his daughter left her house for school, but did not return back. F.I.R. further alleges that his daughter was enticed away by the applicant and his brother Ritesh.
It is argued by learned counsel for the applicant that on 07.02.2021 (after one month of lodging F.I.R.), victim was recovered from the possession of applicant and thereafter her statement under Section 161 Cr.P.C. was recorded on 07.02.2021, in which she has not supported the prosecution case. Thereafter, her statement under Section 164 Cr.P.C. was recorded on 09.02.2021, in which also she has not supported the prosecution case. It is next submitted that as per medical examination report age of victim is above 17 years. It is further submitted that the applicant is languishing in jail since 07.02.2021 and considering the statements of victim, it is apparently clear that she was consenting party with the applicant, therefore, applicant is entitled to be released on bail. Lastly it is submitted that if the applicant is released on bail, he will not misuse the liberty of bail and will cooperate in the early disposal of the case.
Per contra learned A.G.A. as well as Shri Abhitab Kumar Tiwari have opposed the prayer for bail of the applicant by contending that as per date of birth of the victim, as mentioned in the F.I.R., she is minor, but they do not dispute that victim in her statements under Section 161 and 164 Cr.P.C. did not support the prosecution case.
After having heard learned counsel for the applicant as well as learned A.G.A., I find that F.I.R. has been lodged after a delay of 12 days and victim in her statements did not support the prosecution case. The victim has also clearly stated in her statements that she and applicant solemnized their marriage in temple and after taking a room on rent they have started living as husband and wife. Considering the entire facts and circumstances of the case, possibility of victim being consenting party with the applicant 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 fit case for bail. Hence, the bail application is hereby allowed.
Let the applicant Rajan Rajbhar 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 Sunil Kr. Gupta Digitally signed by Justice Sanjay Kumar Singh Date: 2021.07.29 16:22:40 IST Reason: Document Owner Location: High Court of Judicature at Allahabad