Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2641 of 2019 Applicant :- Sikandar Opposite Party :- State Of U.P. Counsel for Applicant :- Mohd. Monis Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant Sikandar, who is in jail since 17.12.2018 in connection with Case Crime No.0493 of 2016, under Section 376 I.P.C. and Section 3/4 POCSO Act, P.S. Ghazipur, District Fatehpur.
Heard Mohd. Monis, learned counsel for the applicant and Sri Indrajeet Singh Yadav, learned AGA alongwith Sri Ashutosh Srivastava, learned counsel appearing on behalf of the State.
The submission of the learned counsel for the applicant is that in the written first information, the allegation of rape is against Jahangeer S/o Habeeb Khan and no one else. There is absolutely no allegation against the applicant so far as the FIR version goes. Rather, in the FIR it is on the information of the applicant and another co-accused Ansar that the informant came to know the whereabouts of his sister. The same stand has been taken in the statement recorded under Section 161 Cr.P.C. by the informant and his sister (prosecutrix). It is pointed out that in the statement under Section 164 Cr.P.C. recorded, subsequently before the Magistrate, the prosecution story has been improved to include the applicant and co-accused Ansar also. It is submitted that during investigation, the applicant's complicity was not found by the police and, therefore, no charge sheet was filed against the applicant. However, during trial, looking to the same stand of the prosecutrix, as that under Section 164 Cr.P.C., the applicant has been summoned to stand trial under Section 319 Cr.P.C. He has surrendered and has now been denied bail.
The submission of the learned counsel for the applicant is that the prosecution case has been materially improved from what it was in the FIR and the statements to the police under Section 161 Cr.P.C. and the statement recorded under Section 164 Cr.P.C. It is argued that in case the applicant were involved, there was no impediment or good reason not to nominate him in the FIR, as the same was lodged after the recovery of the prosecutrix. It is argued that the same allegation could have come in the statements under Section 161 Cr.P.C. recorded by the police where the allegation is not against the applicant but co-accused Jahangeer alone. It is further submitted by learned counsel for the applicant that co-accused Ansar, whose role is at par with the applicant has been admitted to the concession of bail by this Court vide order dated 24.10.2018, passed in Criminal Misc. Bail Application No.37745 of 2018, and, therefore, the applicant is entitled to the benefit of parity.
Learned A.G.A. has opposed the prayer for bail but does not dispute the factum of parity.
Considering the facts and circumstances of the case, the nature of allegations, the gravity of the offence, the severity of punishment, the fact that the prosecution has fundamentally improved its case to implicate the applicant that was not there in the FIR lodged after recovery of the prosecutrix and also in her statement under Section 161 Cr.P.C. at the stage of Section 164 CrPC, the fact that the applicant's case stands at par with co-accused Ansar, who has been granted bail by this Court, but without expressing any opinion on merits, this Court, finds it to be a fit case for bail.
The bail application, accordingly, stands allowed.
Let the applicant Sikandar, who is in jail since 17.12.2018 in connection with Case Crime No.0493 of 2016, under Section 376 I.P.C. and Section 3/4 POCSO Act, P.S. Ghazipur, District Fatehpur be released on bail on executing his personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:
i) The applicant shall not tamper with the prosecution evidence.
ii) The applicant shall not threaten or harass the prosecution witnesses.
iii) The applicant shall appear on the date fixed by the trial court.
iv) The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission.
v) 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 such person from disclosing facts to the Court or to any police officer or tamper with the evidence.
In case of default of any of the conditions enumerated above, the complainant would be free to move an application for cancellation of bail before this Court.
However, looking to facts and circumstances of the case, it is directed that the trial pending before the concerned court be concluded expeditiously and preferably within six months from the date of receipt of a certified copy of this order in accordance with Section 309 Cr.P.C. and in view of principle laid down in the judgment of the Hon'ble Supreme Court in the case of Vinod Kumar v. State of Punjab reported in 2015 (3) SCC 220, if there is no legal impediment.
It is made clear that in case the witnesses are not appearing, the concerned court shall initiate necessary coercive measures for ensuring their presence.
Let a copy of the order be certified to the court concerned for strict compliance.
Order Date :- 21.1.2019 NSC