Court No. - 67
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32442 of 2020
Applicant :- Shani
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Sanjay Srivastava,Vindhyachal Singh
Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
In pursuance to the order dated 15.10.2020 of this court, report dated 12.11.2020 of C.M.M., Kanpur Nagar, shows that notice was duly served upon opposite party no. 2, Rakesh @ Pappu, but no one appeared on his behalf.
Heard Sri Vindhyachal Singh, learned counsel for the applicant, the learned A.G.A. and also perused the record.
By means of the present bail application the applicant, who is facing prosecution in connection with Case Crime No. 284 of 2020, u/s 363, 364, 366, 376, 354 & 506 I.P.C. and Section ¾ of POCSO Act, P.S.-Juhi, District- Kanpur Nagar, is seeking his enlargement on bail during trial.
Submission of learned counsel for the applicant is that F.I.R. was got registered by father of the victim against the applicant and other two accused alleging that they have enticed away daughter of the informant on 17.3.2020 and they started teasing and misbehaving with the victim and on this initially an F.I.R. was registered under sections 363, 364, 354 & 506 I.P.C. against them. The girl herself came to the police station and narrated the whole story. On the aforesaid date, she has given an application to the S.H.O., Police Station-Juhi, Kanpur Nagar. After giving the said application, victim got married with the applicant. Vicitm is a major lady aged about 20 years. She accuses her own father and uncle that they want to kill her and also they want to marry her with some elderly person. She further informs to the police that on 16.6.2020, she has performed court marriage with the applicant. In addition to above, she has also declined to get her medically examined to ascertain the allegation of rape upon her. The applicant is in jail since 20.7.2020 having no criminal antecedents.
Per contra, the learned A.G.A. has opposed the prayer for bail by submitting that victim has stated in her statement, recorded under section 164 Cr.P.C., which was recorded after two months of the alleged incident, when she was in the custody of her parents. She has somersaulted by 180 degrees from her earlier stand, accusing the applicant for sexual assault. After hearing the parties and perusing the Annexure No. 8, which is a court marriage agreement dated 16.6.2020 as well as her own application addressed to the S.H.O. Police Station Juhi, Kanpur Nagar, dated 20.6.2020, coupled with the fact that she has refused to get her medically examined to ascertain the factum of sexual assault upon her.
Keeping in view the nature of the offence, evidence on record regarding complicity of the accused, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018)3 SCC 22 and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
Let the applicant - Shani, who is involved in aforementioned case crime 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 subject to following conditions. Further, before issuing the release order, the sureties be verified.
(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.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.
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 to be released on bail forthwith. Needless to mention that these additional conditions are imposed to cope with emergent condition-:
1. The applicant shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is 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.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 6.4.2021 Vibha Singh