Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 23733 of 2019 Applicant :- Shivam Sharma Opposite Party :- State Of U.P. Counsel for Applicant :- Rajeev Tiwari Counsel for Opposite Party :- G.A.
Hon'ble Karuna Nand Bajpayee,J.
Heard Shri K.K. Yadav, Advocate holding brief of Shri Rajeev Tiwari, learned counsel for the applicant and learned A.G.A.
Perused the record.
Submission of the counsel is that the applicant has already been released on bail under section 363, 366 I.P.C. by another Bench of this Court. It was emphasized by the counsel that while granting bail the High Court had also considered the statement of the victim recorded under section 164 Cr.P.C. before the Magistrate according to which the allegation of rape by the applicant was completely denied by the victim. The Court was cognizant of complete facts of the case at the time of hearing of earlier bail application. Submission is that as the charge-sheet has been submitted against the applicant under section 376 I.P.C. and 3/4 POCSO Act also, therefore the applicant now seeks bail under those sections again. Counsel has also argued that as the earlier bail was granted after going through the entire facts of the case there is hardly any new thing on the basis of which the bail may now deserve to be rejected. It was also pointed out that medically estimated age of the victim is of about 18 years and she was a student of B.Sc. IInd year. Submission is that actually the real age of the victim is much above 18 years and she had already attained majority at the time of incident. Contention is that at any rate in view of complete denial of allegation of rape in the statement recorded under section 164 Cr.P.C. at lease a prima facie case for bail is made out. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been submitted that the applicant is in jail since 07.01.2019 and in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.
Learned A.G.A. has opposed the prayer for bail.
After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
Let the applicant- Shivam Sharma, involved in Case Crime No.468 of 2018, u/s 376 I.P.C. and 3/4 Protection of Children From Sexual Offences Act, P.S.- Etmadpur, District- Agra, be released on bail on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned on the following conditions :-
(1) The applicant will not make any attempt to tamper with the prosecution evidence in any manner whatsoever.
(2) The applicant will personally appear on each and every date in the court and his personal presence shall not be exempted unless the court itself deems it fit to do so in the interest of justice.
It may be observed that in the event of any breach of the aforesaid conditions, the court below shall be at liberty to proceed for the cancellation of applicant's bail.
It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.
Order Date :- 7.6.2019 shiv