Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20340 of 2018 Applicant :- Shani Thathera Alias Shani Kumar Opposite Party :- State Of U.P.
Counsel for Applicant :- Anil Kumar Rai Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard Sri Anil Kumar Rai and Sri DK Singh, learned counsel for the applicant, learned AGA and perused the record.
Contention raised at the Bar is that the applicant has been falsely implicated in the present case. It has been further submitted that the prosecutrix herself lodged the FIR dated 20.04.2018 for the occurrence dated 03.04.2018 i.e., after 17 days of the incident, under sections 452, 420 and 376 IPC with the allegation that she was well acquinted with the applicant, who happened to be her neighbour, was infatuated with him for the last six months and on her own volition and accord she physically surrendered before him and copulated with him for number of times as the applicant assured her to marry but later on due to intervention of the family members, the marriage between them could not be solemnized, eventually infuriated by this, she lodged the instant FIR against the applicant. She was admittedly 19 years of age at the relevant point of time. She understands the meaning of pre marital sex with any boy and established sexual relationship with the applicant. In her statement recorded under section 164 Cr.P.C., recorded on 04.05.2018, the victim even at that juncture was desirous to marry the applicant, therefore, her conduct establishes that she was a consenting party. The applicant is in jail since 20.04.2018, having no criminal antecedents to his credit.
Learned AGA 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.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties and without expressing any opinion on merits of the case, this Court is of the view that the applicant has made out a case for bail.
Let the applicant Shani Thathera alias Shani Kumar, involved in Case Crime No. 100 of 2018, under sections 452, 420 and 376 IPC, P.S. Jaitpura, District Varanasi be released on bail 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 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.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court.
Order Date :- 29.5.2018 shailesh