C.M.A. No.87593/2021
1. Heard learned counsel for the parties.
2. The reasons assigned in the affidavit filed in support of the application are sufficient. Accordingly, the application is allowed.
3. Learned counsel for the applicant is permitted to carry out necessary incorporation during the course of the day.
On Bail Application
1. Supplementary affidavit filed today in Court, is taken on record.
2. Heard learned counsel for the applicant, learned A.G.A. appearing for the opposite party-State and perused the record.
3. This is second bail application on behalf of the applicant in Case Crime no.0272 of 2019 under Sections 294, 376, 420, 504 and 506 of the Indian Penal Code and Section 67-A of the I.T. Act, Police Station Chowk, District Lucknow.
4. Allegation in the First Information Report is that taking advantage of ill-health of the victim, the applicant committed rape since 2015 to 2019.
5. Submission of learned counsel for the applicant is that the applicant is innocent and he has been falsely implicated in the case. He submits that there is delay of more than five months in lodging the F.I.R. for which there is no valid explanation. He submits that the applicant has no criminal antecedents and he is languishing in jail since 30.7.2019.
6. Submission of learned counsel for the applicant is that on the basis of high school marksheet issued by the C.B.S.E., the date of birth of the prosecutrix has been recorded as 6.11.1996. The incident took place, as alleged in the First Information Report, on 29.7.2019, thus, at the time of incident, the prosecutrix was aged more than 22 years. He submits that the relationship between applicant and the prosecutrix was consenting, therefore, no case under Section 376 IPC has been made out against the applicant.
7. In regard to the allegation under Section 420 IPC, he submits that there is no material to establish that the prosecutrix has given Rs.42,000/- to the applicant on false assurance. No material in this regard has been placed by the Investigating Officer while submitting the charge sheet, nor in the counter affidavit in regard to the allegation under Section 420 IPC, any material has been brought on record, therefore, in the light of the said, submission of learned counsel for the applicant is that no case under Section 420 IPC is made out against the applicant. He invited attention of this Court on the photographs annexed from page 23 onwards of the paper book. On the basis of the photographs, his submission is that it can clearly be seen that the applicant and prosecutrix were having a consenting relationship and the prosecutrix being major, was fully aware of the prospects which she was doing.
8. It is also submitted and there is no apprehension that the accused-applicant after release on bail, may flee from the process of law or may otherwise misuse the liberty, therefore, his submission is that the applicant is entitled to be enlarged on bail.
9. Learned A.G.A., however, on the other hand submits that the applicant is not entitled to be granted bail, but does not dispute the submission advanced by learned counsel for the applicant.
10. After having heard rival contention of learned counsel for the parties, I perused the material on record as well as the photographs annexed alongwith the bail application.
11. On perusal of the photographs, it is evident that the applicant was not a stranger to the prosecutrix. The photographs clearly demonstrate that she was in relationship with the applicant. On perusal of the marksheet annexed alongwith the supplementary affidavit, it is evident that the prosecutrix was aged more than 22 years at the time of incident, therefore, she was fully aware in regard to the relationship with the applicant. The applicant is also languishing in prison for more than 2 years.
12. 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, without expressing any opinion on the merit of the case, I find it to be a fit case for granting bail. Accordingly, the bail application is allowed.
13. Let applicant Rajveer Yadav @ Pintu be released on bail in the aforesaid case crime number 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.
14. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
15. Observations made herein-above are only for the purpose of disposal of this bail application and the same shall not have any bearing on the trial of the case.
Order Date :- 17.8.2021 Gautam