Court No. - 1
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8960 of 2019 Applicant :- Shaukeen Opposite Party :- State Of U.P.
Counsel for Applicant :- Mohd. Akbar Shah Alam Khan Counsel for Opposite Party :- G.A.
Hon'ble Ramesh Sinha,J.
Heard Sri M.A.S.A. Khan, learned counsel for the applicant and Sri Irshad Hussain, learned A. G. A. for the State and perused the material on record.
Learned counsel for the applicant submitted that as per the F.I.R. and according to the marksheet of class-VIII, the prosecutrix about 17 years nine months and nine days. He further submitted that the estimated age of a person as opined by the doctor, is always subject to two years' margin or error or relaxation on both sides. As per her statement u/s 164 Cr.P.C., she voluntarily eloped with the applicant and remained with him for about 5-6 days. It is not a case of taking away or enticing away the victim. He further submits that though in the statement recorded under Section 164 Cr.P.C. the prosecutrix has levelled allegation of rape against the applicant but the same does not corroborate by her medical report. Hence the applicant who in jail since 29.12.2018 and has no reported criminal antecedents to his credit, is entitled to be enlarged on bail.
Per contra, learned A. G. A. has vehemently opposed the prayer for bail.
Considering the submissions made by learned counsel for the applicant and learned A. G. A. for the State, this Court is of the view that the applicant has made out a case for grant of bail.
Let the applicant Shaukeen involved in Case Crime No. 1393 of 2018 under section 363, 376 I.P.C. and 3/4 POCSO Act, police station Baraut, District Baghpat be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with 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 :- 29.5.2019 Shiraz