Heard learned counsel for the applicant, learned AGA for the State and perused the record.
This is second bail application. First bail application was rejected on merit vide order dated 14.11.2018 passed by coordinate bench of this Court in Bail No.9562 of 2018.
Learned counsel for the applicant submitted that the accused applicant has falsely been implicated in the present case. It has further been submitted that Arif and the prosecutrix were having love affair, due to which the alleged incident happened. The statement of prosecutrix recorded in trial court as P.W.-2 which has been placed before the court in which she has turned hostile and denied any of such incident happening on the said date. Considering this, the prosecutrix has not supported the case in her statement in the trial court. The accused-applicant is languishing in jail since 31.7.2018 having no criminal history. It is further submitted that there is no possibility of the applicant of fleeing away from judicial custody or tampering with the witnesses. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail.
Learned A.G.A. opposed the prayer for bail but could not dispute the aforesaid facts as argued by the learned counsel for the applicant.
Without expressing any opinion on the merits of the case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tempering of the witnesses and prima facie satisfaction of the Court in support of the charge, the applicant is entitled to be released on bail in this case.
Let the applicant,Shahzad, involved in Case Crime No.104 of 2018, under Sections 376-D, 342 and 120-B IPC, Police Station - Haiderganj, District - Faizabad, 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 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 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.
Order Date :- 28.8.2019 KR