Court No. - 67
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26956 of 2019 Applicant :- Shaukeen Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Vikas Sharma Counsel for Opposite Party :- G.A.,Anurag Vajpeyi,Aushim Luthra
Hon'ble Rahul Chaturvedi,J.
Counter affidavit filed by learned AGA annexing the report of radiologist, today which is taken on record.
Heard Sri Vikas Sharma, learned counsel for the applicant, Sri Aushim Luthra, learned counsel for the complainant, learned AGA for the State and perused the material on record.
By means of this application, the applicant who is involved in case crime no.655 of 2018, under Sections 363 and 376 IPC and Section 5/6 POCSO Act, P.S. Kutubsher, District Saharanpur is seeking enlargement on bail during the trial.
Learned counsel for the applicant submitted that the FIR of the incident was registered by the brother of the girl through 156(3) Cr.P.C. application on 29.11.2018 for the incident said to have been taken place on 12.10.2018. It is contended by the counsel that the allegations are made in the FIR against four named persons, namely, Shaukeen, Istekhar, Mursaleen and Mobin that all the four named accused personal have outraged the modesty of the girl. After conclusion of the investigation the charge sheet has submitted only against Shaukeen the present applicant dropping the name of Istekhar, Mursaleen and Mobin from the charge sheet. Learned counsel for the applicant submitted that the statements under Section 161 and 164 Cr.P.C. of the victim, in which she has clearly stated that she was having the relationship with the applicant for last one year and during this period they have developed relationship with each other and there was a promise to marry her and on account of this promise she has developed the pre-marital sex with the applicant with her consent. He lastly submitted that the applicant is in jail since 18.01.2019 is entitled to be enlarged on bail during the pendency of trial.
Per contra learned AGA opposed the prayer for bail but could not dispute the aforementioned facts.
Pursuant to the earlier order of this Court dated 20.09.2019, C.M.O., Saharanpur has sent radiologist report. The report shows that the age of the girl is 19+ years and she understands the far reaching repercussion of pre- marital sex. Besides this police has found nothing incriminating against the other co-accused persons and dropped their name from the charge sheet. So far as the applicant is concerned, the girl who is in consensual relationship with the applicant, which clearly shows that the victim is consenting party to entire episode.
Considering the submissions made by learned counsel for the applicant as well as learned AGA and without expressing any opinion on the merits of the case, I find it to be a fit case for bail.
In view of the above, let the applicant- Shaukeen be released on bail on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned in case crime no.655 of 2018, under Sections 363 and 376 IPC and Section 5/6 POCSO Act, P.S. Kutubsher, District Saharanpur with the following conditions:-
(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, 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 THE HIM/HER 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/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 :- 27.9.2019 Abhishek Sri.