Court No. - 67
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 24403 of 2021 Applicant :- Santosh Kumar Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Shri Prakash Dwivedi Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the applicant, learned counsel for the complainant as well as 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.54 of 2021, under Section 363, 366, 376 IPC and Section 3/4 of the Protection of Children From Sexual Offences Act, Police Station-Kotwali Chunar, District-Mirzapur is seeking enlargement on bail during the trial.
Submission made by learned counsel for the applicant is that initially the informant Lakshman lodged the FIR against the applicant under sections 363, 366 IPC on 7.03.2021 and after recorded the statement of the victim, sections 376 IPC and 3/4 Protection of Children From Sexual Offences Act have been added. The FIR was lodged on 7.03.2021 for the alleged incident dated 1.3.2021 with the allegation that the named accused persons have enticed away the daughter of the informant. However, the girl was eventually recovered on 15.03.2021, whereby statements of the victim under sections 161 and 164 Cr.P.C. were recorded, in which she has stated that she is aged about 17 years and she was in relationship with the applicant. Both of them have married in Durga temple and she remained with the company of the applicant about 13-14 days without any resistance. She claimed that she is carrying pregnancy of two months but the report is clearly negated in ultrasound report. In the medical report, she is aged about 18 years. Taking into account her age and statements of the girl recorded under sections 164 Cr.P.C. seems to be in consensual relationship with applicant and she had got married with the applicant. The applicant is languishing in jail since 17.03.2021.
Learned A.G.A opposed the prayer for bail but could not dispute the aforesaid facts and the legal submissions as argued by the learned counsel for the applicant. As per statements of the victim recorded under section 164 Cr.P.C. she is a minor girl and she had accepted the relationship with the applicant.
After considering the rival submissions, she seems to be a major girl aged about 18+ years and rest of conduct indicates that she appears to be consensual relationship, thus, 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, Santosh Kumar, who is involved in case crime no.54 of 2021, under Section 363, 366, 376 IPC and Section 3/4 of the Protection of Children From Sexual Offences Act, Police Station-Kotwali Chunar, District-Mirzapur 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 :- 25.10.2021 SFH