Court No. - 28
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33494 of 2019 Applicant :- Sanjay Gupta Opposite Party :- State Of U.P.
Counsel for Applicant :- Pradeep Kumar Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Pradeep Kumar, learned counsel for the applicant and the learned A.G.A. for the State.
This bail application has been filed by the applicant Sanjay Gupta, seeking his enlargement on bail in Case Crime No. 94 of 2019 under Sections 363, 366, 376 IPC and 3/4 POCSO Act, P.S. Ghughali, District Maharajganj during the pendency of the trial.
Learned counsel for the applicant invited the attention of the Court to the statement of the prosecutrix as recorded under section 164 Cr.P.C. and on the basis thereof, he submits that the date of birth of prosecutrix is 17.10.2001, and incident is alleged to have occurred on 3.5.2019. As such, on the date of incident, the age of prosecutrix was 17 years and five months. Consequently, mandatory povisions of section 439 Cr.P.C. are not required to be complied with in the present case.
In respect of an incident which occurred on 3.5.2019, Jawahar Lal the father of the prosecutrix lodged an F.I.R. dated 4.5.2019, which was registered as Case Crime No. 0094 of 2019, under sections 363, 366 and 16/17 POCSO Act, P.S. Ghughali, District Maharajganj.
In the aforesaid F.I.R., the applicant Sanjay Gupta was nominated as the named accused. According to the prosecution story as unfolded in the F.I.R., it is alleged that the applicant forcibly took the daughter of the first informant Nilu who is aged about 17 years and five months and thereafter, committed criminality upon her.
Learned counsel for the applicant submits that the applicant is innocent. The applicant has falsely been implicated in the above mentioned case crime number. The applicant is in jail since 7.5.2019. It is next submitted that prosecutrix has not remained consistent as is clearly evident from her statement under section 161 Cr.P.c. and 164 Cr.P.C. Lastly, it is urged that the prosecutrix was a consenting party and therefore, the applicant is liable to be enlarged on bail.
Per contra, the learned A.G.A. has opposed the prayer for bail. However, he could not dispute the factual and legal submissions raised by learned counsel for the applicant.
Having heard the learned counsel for the applicant and the learned A.G.A. for the State and upon perusal of the material brought on record as well as the complicity of the applicant and without making any comment on the merits of the case, I find that applicant has made out a case for bail.
Let the applicant Sanjay Gupta, 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 SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, 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 THE HIM/HER 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.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 26.8.2019 Arshad