Court No. - 67
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42829 of 2020 Applicant :- Saurabh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Prem Narayan Tiwari Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Today learned AGA has filed two counter affidavits dated 09.02.2021 and 26.03.2021 respectively which are taken on record.
Learned counsel for the applicant does not want to file any rejoinder affidavits to the counter affidavits.
Heard Sri P.N.Tiwari, learned counsel for the applicant 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.356 of 2020, under Sections 363, 376 and Section 3/4 of the POCSO Act, Police Station- Loni Border, District- Ghaziabad is seeking enlargement on bail during the trial. The applicant is languishing in jail since 13.06.2020.
Submission made by learned counsel for the applicant is that the FIR of the incident was lodged by Kamla Devi under Section 363 IPC on 04.06.2020 with the allegation that the applicant has enticed away the minor daughter of the informant aged about 16 years. Contention raised by the counsel that the gilr was eventually recovered on the very next day and she came back on her own volition. Learned counsel for the applicant has drawn the attention to the Annexure No. 3 to the application that bail application no. 24723 of 2020 on 08.09.2020, the applicant was enlarged on bail under Section 363 IPC, P.S. Loni Border, Ghaziabad. Soon after when he went to execute the bail bonds, the applicant came to know the Section 376 IPC has been added. Relying upon the Section 161 and 164 Cr.P.C. statements, in which she has levelled the allegation of rape upon her by the applicant but facts remains that she has never admitted herself for any medical examination so as to medically ascertain the allegation of rape upon her. As per the C.M.O. report, the age of the girl is 18 years. In 161 Cr.P.C. statement she stated that on 08.06.2020 she has performed marriage with the applicant and they are residing like husband and wife.
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.
Taking into totality of the circumstances, more particularly she has never admitted for any medical examination to establish the fact of rape upon her 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-Saurabh, 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/APPLICANTS SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE/THEY SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE WHEN THE WITNESSES IS/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/APPLICANTS SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER/THEIR COUNSEL. IN CASE OF HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIS/HER/THEIR UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT/APPLICANTS MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT/APPLICANTS FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIS/HER/THEIR, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) THE APPLICANT/APPLICANTS 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/APPLICANTS IS/ARE 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 HIS/HER/THEIR 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/APPLICANTS.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
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/applicants to be released on bail forthwith. Needless to mention that these additional conditions are imposed to cope with emergent condition-:
1. The applicant/applicants shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is/are 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 :- 6.4.2021 Abhishek Sri.