Court No. - 51
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28959 of 2021 Applicant :- Shiva Joshi Opposite Party :- State of U.P. and Another Counsel for Applicant :- Devendra Saini Counsel for Opposite Party :- G.A.
Hon'ble Om Prakash-VII,J.
Despite Service of notice, none present for the opposite party no.2.
Heard Sri Shivaji Singh Sisodia, holding brief of Sri Devendra Saini, learned counsel for the applicant as well as the learned A.G.A for the State and perused the record.
It is submitted by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case on the basis of false facts. He has not committed the present offence. At this stage, learned counsel has referred to the statement of the victim recorded under section 164 Cr.P.C. and further argued that nothing has been stated by the victim in it to attract the offence under section 376 IPC. Medical evidence does not support the prosecution version. There is no independent witness of the alleged incident. Victim is major and had gone to the applicant's house out of her own free will. She is married to the applicant. Thus, referring to the entire evidence, it is further argued that no prima facie case is made out against the applicant. The applicant has no criminal history. He is languishing in jail since 27.12.2020 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
On the other hand, learned AGA opposed the prayer for bail and argued that victim is minor. Consent given by her cannot be constituted as free consent. Victim has supported the prosecution case in the statement recorded under section 164 Cr.P.C., thus offence under section 376 IPC is clearly attracted against the applicant. A prima facie case is made out against the applicant.
In this matter, as is evident from the record, although victim is minor, but nothing has been stated by her in the statement under section 164 Cr.P.C. to attract the offence under section 376 IPC, thus considering the entire facts and circumstances of the case, submissions of learned counsel for the parties and keeping in view the nature of offence, complicity of accused, scrutinizing the facts mentioned in the F.I.R., statement of victim recorded under Section 164 CrPC, the medical evidence, 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 Shiva Joshi involved in Case Crime No.582 of 2020, under Sections 363, 366, 376 IPC, Section 4 POCSO Act and Section 3 (2) (v) S.C./S.T. Act, P.S. Nagina, District - Bijnor be released on bail on furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.
1. The applicant will not tamper with the evidence during the trial. The applicant will not pressurize/ intimidate the prosecution witness.
2. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
3. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.
The party shall file self attested computer generated copy of this order downloaded from the official website of High Court, Allahabad. 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.
Order Date :- 7.10.2021 ss Digitally signed by OM PRAKASH Date: 2021.10.08 13:15:11 IST Reason: Document Owner Location: High Court of Judicature at Allahabad