Service of notice upon opposite party no. 2 is sufficient but none is present from his side.
Heard Sri Ashok Kumar Garg, Rakesh Ojha, learned counsel for the applicant and Sri G.P. Singh, learned A.G.A. for State and perused the record.
This application under Section 439 Cr.P.C. has been moved seeking bail in Case Crime No. 70 of 2020 under Sections 363, 366, 376, 504, 506 I.P.C. and 3/4 POCSO Act, Police Station Kishni, District Mainpuri, during the pendency of trial.
As per F.I.R. lodged by Girish Chandra, on 25.2.2020 at abot 5:00 pm, his daughter aged about 14 years was enticed away by the co-accused Shani Shakya from the road leading to Kishni where she was standing and when a written report regarding this was given at the P.S., applicant Ravi Shakya abused him badly and was threatened to be killed.
Submission made by the learned counsel for the applicant is that victim was recovered from the bus stand Kasba Kishuni on 20.6.2020 thereafter statement under Section 161 Cr.P.C. was recorded in which she had made allegation against Shani Shakya that he had taken her to Gurgaon where she remained with him for four months and they were staying together as husband and wife and co-accused Shani had forcibly established relationship with her, thereafter police had arrested him from Guragaon. In her statement recorded under Section 164 Cr.P.C., she has added name of the applicant also as the person who was also involved in committing rape upon her. He has pointed out the statement recorded of the victim under Section 164 Cr.P.C. in which name of the applicant has been added subsequently and initial has been made thereon by the Magistrate who has recorded the same and has shown that the said name of applicant i.e. Ravi Shakya appeares to have been subsequently added. In the light of above statement, it is argued that the sole allegation is against the co-accused Shani Shakya and not against the accused-applicant. As regards the medical, she has refused to get herself medically examined as is evident from the report of CMO at page 40 of the affidavit. Applicant has no criminal history. He is in jail since 24.6.2020. If released on bail, he will not misuse the liberty of bail.
Learned A.G.A. has vehemently opposed the prayer of bail and has drawn attention to the statement of the victim recorded under Section 164 Cr.P.C. in which she has taken name of the accused-applicant to be the person also involved in commission of rape.
In view of above arguments, looking to the fact that there is no medical examination conducted of the victim and the initially name of the applicant was not taken in statement recorded under Section 161 Cr.P.C. and subsequently the name of the applicant has been taken by her in her statement recorded under Section 164 Cr.P.C., taking into consideration the quantum of punishment, nature of offence, there are no chances of accused fleeing from justice and period of detention, without expressing any opinion on the merits, this case is found to be a fit case for bail.
Let the applicant Ravi Sakya involved in aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions that:-
1. The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial.
2. The applicant shall cooperate in the trial sincerely without seeking any adjournment.
3. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Taking into consideration that Covid-19 is continuing and due to which certified copy would not be possible to be obtained by the applicant, therefore, if a copy of this order downloaded from the official website of Allahabad High Court and self attested by the counsel for the applicant is placed before the Court, the same would be entertained.
Order Date :- 4.2.2021 A.P. Pandey