Court No. - 78
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28319 of 2018 Applicant :- Ramesh Opposite Party :- State Of U.P.
Counsel for Applicant :- Kamalesh Kumar Nishad Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard learned counsel for the applicant and Sri Sheetal Prasad Chaudhary, learned counsel for the State as well as perused the material on record.
The present bail application has been filed by the applicant- Ramesh with a prayer to enlarge him on bail in Case Crime No. 379 of 2018, under Sections 363, 366, 376 I.P.C. and Sections 3/4 POCSO Act, Police Station-Sector-39 Noida, District- Gautam Budh Nagar, during the pendency of the trial.
It has been argued by learned counsel for the applicant that as per the medical examination report, the victim is 18 years old and she is actually a fully grown up major girl. According to the allegations made in the first information report lodged on 4th May, 2018 by Naresh Kumar Sharma father of the victim, namely, Swati, the victim was enticed away by the applicant on 3rd May, 2018. The first informant and other family members tried to search her but they could not succeed. It has further been argued by the learned counsel for the applicant that in the statements recorded under Sections 161 and 164 Cr.P.C., the victim has stated that she knew the applicant since last two months and she was persuaded by the applicant to go to Delhi along with him, where they visited to Kalika Temple. The applicant had left her to Sadarpur. The applicant had sexually assaulted her in his house. A perusal of the aforesaid statements of the victim indicates that she was known to the applicant. She went alone from her house on her free will and travelled for kilometers with the applicant. It is impossible to believe that a grown up major girl can be taken in most crowded places against her will for such a long distance. There is no evidence that she ever protested or resisted the act of the applicant or made any complaint all this while. The victim was forced to give some incriminating statements against the applicant under coercive pressures. Overall circumstances of the case are strongly suggestive of consensual relationship between the two. Overall circumstances of the case are strongly suggestive of consensual relationship between the two. It is a clear false case implicating the present applicant by the parents of the victim. Earlier the victim has refused to get her medically examined thereafter on the pressure of the first informant she has been medically examined wherein no external or internal injury was found on her body or private part of her body. The applicant has no criminal antecedents to his credit except the present one. It is next contended that there is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail.
The applicant is in jail since 5th May, 2018. As such the applicant has undergone more than eleven months of incarceration. Learned counsel for the applicant has lastly contended that considering the larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh v. State of U.P. and another, reported in (2018) 3 SCC 22 no useful purpose would be served in keeping the applicant behind the bars.
Per contra learned A.G.A. has opposed the bail prayer of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserves any indulgence. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail. However, the learned A.G.A. could not dispute the factual submissions as urged by the learned counsel for the applicant.
The Apex Court in the case of Sanjay Chandra Vs. CBI, (2012) 1 SCC 40 has held that it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. Seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor : The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.
Considering the facts and circumstances of the case as well as submissions made by learned counsel for the parties and also perusing the material on record, without expressing any opinion on merit of the case, let the applicant involved in aforesaid case crime be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to the 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.
(Manju Rani Chauhan, J.) Order Date :- 26.4.2019 Sushil/-