Court No. - 42
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28828 of 2018 Applicant :- Sannu Opposite Party :- State Of U.P.
Counsel for Applicant :- Ajay Kumar Mishra,A.C.Srivastava,Deepak Kumar Tripathi Counsel for Opposite Party :- G.A.,Gyan Chandra Yadav Hon'ble Manoj Misra,J.
Heard Sri A.C. Srivastava for the applicant; and the learned A.G.A. for the State; and perused the record.
This second bail application has been filed by the applicant in case crime No.251 of 2015, under Sections 363, 366, 376-D, 342, 506, 109 IPC and Section 16/17, 3/4 Pocso Act, Police Station Parikshitgarh, District Meerut with a prayer to enlarge him on bail.
The second bail application has been filed on the ground that the main accused Noor Alam has been granted bail by this Court vide order dated 12.07.2018 passed in Bail Application No.26438 of 2016 and, therefore, the applicant is also entitled to be released on bail on ground of parity as the applicant has no previous criminal history. It has been submitted that the applicant has been falsely implicated because he happens to the brother of main accused Noor Alam, who has been granted bail by this Court. It has been submitted that the victim had solemnized marriage with the main accused Noor Alam and that the allegations are nothing but false. Photocopy of the order dated 12.07.2018 passed in Bail Application No.26438 of 2016 has been placed before the Court. In paragraph 4 of the bail order dated 12.07.2018, the contentions raised on behalf of Noor Alam have been noted as follows:-
"It is submitted by learned counsel for the applicant that the sister of the applicant is married in the family of prosecutrix i.e, with her real brother Tayyab; victim is alleged to have been enticed by the applicant on 1.7.2015, alongwith Co-accused Sannu/brother and parents, yet no missing report is filed, whereas F.I.R with ulterior motives came to be lodged on 10.7.2015 i.e, after 10 days relationship between the applicant and the victim is consensual, marriage was solemnized, a suit for restitution of conjugal rights was also filed by the applicant, age of the victim is reported to be 15 years and 5 months, which in the absence of any medical evidence could be probablise to be that of majority, allegations of rape against the applicant and his brother are highly improbable, applicant has no previous criminal history, is in jail since 18.9.2015, undertakes not to misuse the liberty, he be released on bail."
Learned counsel for the applicant has submitted that as co-
accused Noor Alam has been granted bail by noticing that there had been marriage between the victim and Noor Alam, the applicant, who is the brother of main accused Noor Alam, is also entitled to be released on bail. It has been submitted that the applicant has suffered incarceration since 30.12.2015 and, in case he is enlarged on bail, he will not misuse the liberty of bail.
Learned AGA has opposed the prayer for grant of bail to the applicant, but could not demonstrate that the case of the applicant is, in any way, distinguishable from that of co-accused Noor Alam.
Considering the facts and circumstances of the case as also the submissions noticed above, without commenting upon merits of the case, I am of the opinion that the applicant is entitled to be released on bail on ground of parity.
Let applicant Sannu be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) 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.
(iii) 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.
(iv) 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.
(v) 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.
Order Date :- 27.9.2019 AKShukla/-