Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 19202 of 2021 Applicant :- Shivam @ Shubham Opposite Party :- State of U.P. Counsel for Applicant :- Amit Rai Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Matter taken up in the revised list.
Sri Amit Rai, learned counsel for the applicant, Sri B.B. Upadhyay, learned AGA for the State are present.
Notice was issued to the opposite party no. 2 vide order dated 6.8.2021. As per office report dated 22.9.2021 a report of C.J.M., Bijnor has been received and a perusal of the same which is dated 26.8.2021 it is apparent that notice has been served personally on the opposite party no. 2.
No one appears on behalf of the opposite party no. 2 even when the matter has been taken up in the revised list. Service of notice upon the opposite party no. 2 is sufficient.
Heard learned counsels for the parties present and perused the record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Shivam@Shubham, seeking enlargement on bail during trial in connection with Case Crime No. 58 of 2021, under Section(s) 363, 376 I.P.C. and 3/4 POCSO Act, registered at P.S. Najibabad, District Bijnor.
Learned counsel for the applicant argued that although the applicant is named in the F.I.R. along with Charan Singh and one unknown person which has been lodged by the mother of the prosecutrix but the allegations levelled therein are totally false and baseless. It is argued that the F.I.R. was registered under Section 363 I.P.C. and Section 7/8 POCSO Act on the basis of an application under Section 156(3) Cr.P.C. The prosecutrix as per the F.I.R. is aged about 17 years whereas the Chief Medical Officer, Bijnor has opined her age to be about 18 years. It is argued that in the statements recorded under Sections 161 and 164 Cr.P.c. the prosecutrix has stated that she was in love with the applicant and had gone with him out of her own sweet will and stayed in Delhi for about one month with her consent. She went with the applicant on 04.1.2021 and was recovered 3.2.2021. It is argued that the prosecutrix lived with the applicant for about one month without any resistance. It is argued that it is a case of elopement. The applicant is in jail since 6.2.2021 having no criminal antecedents as stated in para- 19 of the affidavit.
Per contra, learned AGA opposed the prayer for bail but could not dispute the arguments as raised.
After having heard learned counsels for the parties and perusing the record, it is evident that the prosecutrix as per her statements recorded under Sections 161 and 164 Cr.P.C., went with the applicant out of her own sweet will and stayed for about one month with him without any resistance whatsoever. As per the certificate of Chief Medical Officer, Bijnor she is major. It is a case of elopement.
Looking to the facts and circumstances of this case, the nature of evidence 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@Shubham, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) 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.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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 I.P.C.
(V) 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 and the trial court may proceed against him under Section 229- A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
The bail application is allowed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
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.
(Samit Gopal,J.) Order Date :- 27.9.2021 Naresh