Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3319 of 2019 Applicant :- Shailesh Gupta Opposite Party :- State Of U.P.
Counsel for Applicant :- Ashok Kumar Gupta Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
Short counter affidavit has been filed by learned A.G.A. for the State today is taken on record.
Heard Sri Sudhir Kumar, Advocate holding brief of Sri Ashok Kumar Gupta, learned counsel for the applicant, Sri D.P.S. Chauhan, learned A.G.A. for the State and perused the material on record.
The present bail application has been filed by the applicant- Shailesh Gupta with a prayer to enlarge him on bail in Case Crime No. 574 of 2018, under Sections 363, 366, 376, 420, 504, 506 I.P.C., and Section 3/4 POCSO Act, Police Station- Pooranpur, District-Pilibhit.
It has been argued by learned counsel for the applicant that as per the version of the F.I.R., the prosecutrix-Jyoti was enticed away by the applicant with the help of other family members. There are contradictions in the statement recorded under Sections 161 and 164 Cr.P.C.. In her statement under Section 161 Cr.P.C., she has stated that she wants to marry the applicant. She has further stated that she was taken away by her parents from the applicant's place with the assurance that they will not lodged the F.I.R. against the applicant. She also stated that the applicant had not sexually assaulted her. Subsequently, she changed her version in the statement under Section 164 Cr.P.C. at the behest of her father. It appears that she is a consenting party. As per the Radiologist report dated 17.09.2018, the prosecutrix is aged about 18-19 years and as per the High School certificate her date of birth is 15.05.2001. The applicant does not have any previous criminal history. 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 27.09.2018.
Per contra learned A.G.A. has 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.
The Apex Court in the case of Sanjay Chandra Vs. CBI, (2012) 1 SCC 40 has held that it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. Seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor : The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.
Considering the facts and circumstances of the case as well as submissions made by learned counsel for the parties and also perusing the material on record, 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.
Order Date :- 28.2.2019 JK Yadav