Court No. - 67
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29066 of 2021 Applicant :- Sajal Kumar Opposite Party :- State of U.P.
Counsel for Applicant :- Chandra Shekhar Mishra Counsel for Opposite Party :- G.A.,Akhilesh Kumar Yadav,Arvind Kumar Srivastava
Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the applicant, Sri Akhilesh Kumar Yadav, learned counsel for the complainant as well as Sri Manish Kesarwani, learned A.G.A for the State and perused the record.
By means of this application, the applicant who is involved in case crime no.114 of 2021, under Section 363, 366, 376 IPC and Section 3/4 of POCSO Act, Police Station-Nahtaur, District-Bijnor is seeking enlargement on bail during the trial.
Submission made by learned counsel for the applicant is that as per the FIR, age of the victim is seventeen and half years by its own admission made in the FIR. I have perused the statement of 161 and 164 Cr.P.C. of the victim in which she has stated that she was in affair with the applicant and eventually married in Arya Samaj Temple on 16.04.2021 and since then, she is residing with the applicant as her legally wedded wife. Besides this, it is also contended that she has declined to get herself medically examined so as to ascertain the factum of rape upon her. This is the biggest fallacy in the prosecution case whereby the victim herself is avoiding herself for any medical examination. Giving the benefit of two years either way, she seems to be major girl, can decide her future and has decided to remain in the company of the applicant. The applicant is languishing in jail since 15.05.2021.
Per contra, Learned counsel for the complainant opposed the prayer for bail by making a mention that as per transfer certificate of class-VIth, the victim seems to be minor girl.
I am afraid to accept the contention advanced by learned counsel for the complainant. The transfer certificate of class-VIth would carry no evidentiary value, more particularly when the victim herself has declined to get her internal medical examination done so as to substantiate the allegations of rape upon her.
Keeping in view the nature of the offence, evidence, complicity of the accused and submissions of learned counsel for the parties, I am of the view that the applicant has made out a case for bail.
Let the applicant, Sajal Kumar, who is involved in the aforesaid case 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 subject to following conditions. Further, before issuing the release order, the sureties be verified.
(i) 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.
(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 IPC.
(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., 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 IPC.
(iv) 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.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.
Since the bail application has been decided under extra-ordinary circumstances, thus in the interest of justice following additional conditions are being imposed just to facilitate the applicant to be released on bail forthwith. Needless to mention that these additional conditions are imposed to cope with emergent condition-:
1. The applicant shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored.
2. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
3. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
4. 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.
Order Date :- 27.10.2021 Sumit S Digitally signed by RAHUL CHATURVEDI Date: 2021.10.28 10:29:52 IST Reason: Document Owner Location: High Court of Judicature at Allahabad