Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31431 of 2018 Applicant :- Shamsher Opposite Party :- State Of U.P.
Counsel for Applicant :- Shams Uz Zaman Counsel for Opposite Party :- G.A.
Hon'ble Rajul Bhargava,J.
Heard Sri Shams Uz Zaman, learned counsel for the applicant and the learned A.G.A. for the State and perused the record.
The present bail application has been filed by the applicant- Shamsher in Case Crime No. 664 of 2018, under Sections 366, 376-D I.P.C. and 5/6 Prevention of Children from Sexual Offence Act, Police Station- Baghpat, District- Baghpat with the prayer to enlarge him on bail.
Learned counsel for the applicant has argued that the applicant is not named in the F.I.R. It has been specifically lodged against the seven named accused. The name of the applicant has been introduced first time in the statement of the victim recorded under Section 161 Cr.P.C., however, there is no allegation of rape against him. Applicant was wanted in a case for the offences under Sections 323, 366 IPC and 7/8 of POCSO Act. The applicant surrendered and was enlarged on bail by an order dated 19.06.2018 of learned Additional District and Sessions Judge, Court No.01, Baghpat. Subsequently, on the basis of statement of the prosecutrix recorded under Section 164 Cr.P.C., the case was converted under Sections 376-D I.P.C. and etc. He further submitted that the victim in her statement recorded under Section 164 Cr.P.C. has specifically stated that the applicant did not sexually assault her and has not made any allegation except that he had also assisted the other co-accused in the alleged crime. It is argued that the case of the applicant is distinguishable from that of other co-accused against whom specific allegation of gang-rape has been alleged by the victim. There is no early prospect of conclusion of trial. So, the applicant, who is in jail since 30.05.2018, having no criminal history to his credit, deserves to be released on bail.
Per contra, learned A.G.A. has vehemently opposed the prayer for grant of bail to the applicant and submitted that prosecutrix is a minor girl and as per school record she is aged about 13 years.
However, keeping in view that the applicant was already enlarged on bail under Sections 323, 366 IPC and 7/8 of POCSO Act and there is no allegation of any sexual assault on the victim by the applicant, I am of the view that the applicant is entitled to be released on bail without expressing any opinion on merits of the case. However, I may record that the case of the applicant is totally distinguishable from that of other co-accused.
Let applicant- Shamsher 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 conditions that:-
1. The applicant shall not tamper with the prosecution evidence;
2. The applicant shall not pressurize the prosecution witnesses;
3. The applicant shall appear on the date fixed by the trial court.
In case of default of any of the conditions enumerated above, the courts below shall be at liberty to cancel bail of the applicant.
Order Date :- 23.8.2018/ Vikas/-