Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30116 of 2021 Applicant :- Ravi Kumar Opposite Party :- State of U.P.
Counsel for Applicant :- Rajesh Kumar Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Matter taken up in the revised list.
Heard Sri Rajesh Kumar Srivastava, learned counsel for the applicant and Sri Raj Kumar Gupta, learned counsel for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant-Ravi Kumar, seeking enlargement on bail during trial in connection with Case Crime No.228 of 2020, under Sections 363, 366, 376 I.P.C. and 3/4 POCSO Act, registered at Police Station Barhan, District Agra.
Notice was issued to opposite party no.2 vide order dated 2.9.2021. As per office report dated 1.10.2021, report of the In-charge Chief Judicial Magistrate, Agra has been received which has been perused by the Court. From the perusal of the said report dated 21.09.2021, it is apparent that the notice has been served personally to opposite party no.2 but no one appears on behalf of opposite party no.2.
The prosecution case as per FIR lodged on 31.12.2020 under Section 363, 366 IPC by Charan Singh against unknown persons is that his daughter is a student of class 12 and her date of birth is 10.01.2003. She on 28.12.2020 went to school but did not return back. In the evening she was called on phone by the first informant on which she replied that she got late and as such she is staying in her friends house and after that since the last four days she is not traceable.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the prosecutrix in her statement under Sections 161 and 164 Cr.P.C. stated that she went with the applicant out of her own sweet-will to Sonipat and established physical relationship with the applicant. The prosecutrix is a major girl. As per her statement under Section 164 Cr.P.C., she was aged about 17 years and 11 months. It is further argued that the prosecutrix was recovered on 02.01.2021 after about five days of her going missing. It is further argued that the present case is a case of consent and the prosecutrix eloped with the applicant. The prosecutrix has refused her medical examination and as such there is no corroboration of the allegation of any physical relationship. It has also been pointed out that the applicant is not having any criminal history as stated in para 16 of the affidavit. The applicant is in jail since 03.01.2021.
Per contra learned counsel for the State opposed the prayer for bail and argued that the prosecutrix went with the applicant. She was twelve days short of gaining majority and she was minor, as such the prayer for bail be rejected.
After hearing the counsel for the parties and perusing the record, it is apparent that the prosecutrix went with the applicant out of her own sweet-will. She has refused her medical examination and as such the allegation of rape is not corroborated. She went to Sonipat with the applicant and stayed there without any resistance and even physical relationship was established with her consent.
Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
Let the applicant-Ravi Kumar, 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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., may be issued and if 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 I.P.C.
(v) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) 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 and the trial court may proceed against him under Section 229-A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
The bail application is allowed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
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.
(Samit Gopal, J.) Order Date :- 7.10.2021 Gaurav