Court No. - 42
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21840 of 2019 Applicant :- Sanjeev Opposite Party :- State Of U.P.
Counsel for Applicant :- Nagendra Kumar Singh Counsel for Opposite Party :- G.A.,Nagendra Bahadur Singh,Nagendra Pratap Singh
Hon'ble Mrs. Manju Rani Chauhan,J.
Supplementary affidavit filed on behalf of the applicant in Court today is taken on record.
Heard Mr. Ishan Dev Giri, Advocate holding brief of Mr. Nagendra Kumar Singh, learned counsel for the applicant, Mr. Nagendra Bahadur Singh, learned consel for the complainant and Mr. Prashant Singh, learned A.G.A. for the State as well as perused the material on record.
The present bail application has been filed by the applicant-Sanjeev with a prayer to enlarge him on bail in Case Crime No. 14 of 2019, under Sections 376-D and 324 I.P.C., Police Station-Haldaur, District-Bijnor, during the pendency of the trial.
Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. A first information report has been lodged on 10th January, 2019 by Kumari Rashmi i.e. prosecutrix herself alleging therein that the applicant was conductor of a bus and prosecutrix used to travel regularly by the said bus in which the applicant was conductor due to which the prosecutrix was friendly with the applicant since 29th December, 2018, they exchanged their mobile numbers with each other and they were also in conversation with each other. On 9th January, 2019 at 06:00 a.m. (morning) the prosecutrix was called by the applicant through mobile phone to come Bijnor as he would provide a job to her. The prosecutrix went to Saint-merry crossing, where the applicant met with her along with his unknown friend, then they went to Krishna College by Maruti car where a second friend of the applicant met them. Thereafter they went in a Jungle, where on a knife point, the applicant sexually assaulted her with the help of his friends and after snatching her mobile phone and watch, he threw the battery of the said mobile phone and watch. Thereafter they stayed there about three hours. After putting her in a vehicle, they ran away. In the statements recorded under Sections 161 and 164, with certain variations, she has reiterated the same version as unfolded in the first information report. It has further been argued by the learned counsel for the applicant that the applicant or his friends has not committed any offence upon. As per statements of the prosecution it is apparently clear that she went along with applicant and his two friends on her own free will.
It has further been argued by the learned counsel for the applicant that the entire story as narrated in the first information report appears to be highly improbable as she went along with the applicant and travelled with him along with his two friends. It is impossible to believe that a grown up major girl can be taken in most crowded places against her will. There is no evidence that she ever protested or resisted the act of the applicant or made any complaint all this while. In the statement recorded under Section 161 Cr.P.C., Sumer Singh (Maharaj Ji), near whose hut the alleged incident had taken place, the applicant, prosecutrix and two others came to his hut and the applicant took a mat from him for enjoying and they stayed there for about three hours. He did not hear any noise of screaming or shouting of any one. This statement also goes to show that the alleged incident had not taken place. As per the medical examination report, there is no internal injury on the body of the prosecutrix. One external injury was found, which is said to be caused by knife. In the re-statement, the the prosecutrix has stated that the said injury has been caused by keys of car. The details of the C.D.Rs. of the applicant and the prosecutrix also go to show that they were friendly and in regular conversations with each other. It has further been argued by the learned counsel for the applicant that from the entire facts and material on record, it is clear that the parties are consenting. As per medical examination report, the prosecutrix is 19 years old. 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 11th January, 2019.
Per contra learned A.G.A. and the learned counsel for the complainant have 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. and the learned counsel for the complainant could not dispute the factual submissions as urged by the learned counsel for the applicant.
Considering the facts and circumstances of the case, submissions made by learned counsel for the parties and the material on record as well as the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. & Another reported in (2018) 3 SCC 22 and 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 :- 7.6.2019 Sushil/-