Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 18708 of 2021 Applicant :- Sonu Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rajeev Kumar Singh Parmar Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Matter taken up in the revised list.
Heard Sri Rajeev Kumar Singh Parmar, learned counsel for the applicant, Sri B.B. Upadhyay, learned AGA for the State and perused the material on record.
Notice was issued to the opposite party no. 2 vide order dated 7.9.2021. As per office report dated 01.10.2021, a report of C.J.M., Farrukhabad has been received and a perusal of the same, it is apparent that as per report of Sri Shadab Khan, Sub Inspector of Police Station Mohammdabad, District Farrukhabad, dated 30.9.2021, 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.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Sonu, seeking enlargement on bail during trial in connection with Case Crime No. 282 of 2020, under Sections 363, 376 I.P.C. and Section 3/4 POCSO Act, registered at P.S. Mohammdabad, District Farrukhabad.
The prosecution case as per the F.I.R. lodged on 14.9.2020 at about 11:58 hours by Smt. Dhanvati Devi the mother of the prosecutrix, under Section 363 I.P.C. naming the applicant only as an accused therein, is that on 11.9.2020 at about 09.00 A.M. her daughter aged about 16 years went to purchase medicines but did not return back till evening. She searched a lot after which she came to know that the applicant has enticed her daughter away. When the first informant enquired about her daughter from the family members of the applicant they left the place in the night with all their household articles.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the prosecutrix and the applicant had filed a writ petition before this Court for quashing of the F.I.R. which was disposed of vide order dated 3.12.2020 passed in Criminal Misc. Writ Petition No. 14019 of 2020, Jyoti and another Vs. State of U.P. and 3 others, wherein directions were issued for recording of the statement of the prosecutrix and her medical examination and the arrest of the petitioners was stayed if the victim was found to be major. It is argued that the prosecutrix in her statements recorded under Sections 161 and 164 Cr.P.C., has stated that she left her house on her own sweet will and went to her elder sister's house after which she went to Gurgaon and stayed there out of her own sweet will. She has not been kidnapped by anyone. It is argued that she was recovered on 30.10.2020 and was taken to the doctor on 31.10.2020 where she refused her internal medical examination. She was produced before the Radiologist for ascertainment of her age and as per the certificate of Radiologist of Dr. R.M.L. Hospital, Farrukhabad dated 2.11.2020, she has been opined to be of about 17 years of age. It is argued that by giving variation of two years in the age, she would be a major girl.
It is further argued that subsequently the prosecutrix informed the police that she is carrying a pregnancy after which she was medically examined on 7.12.2020 and was found to be pregnant. Subsequently her second statement under Section 161 Cr.P.C. was recorded in which she for the first time names the applicant as the person with whom she stayed in Gurgaon and states that they had married each other in court and had established physical relationship. They stayed together for about one and half months. It is argued that the applicant and the prosecutrix solemnized marriage in Arya Samaj, Krishna Nagar, Prayag on 09.10.2020, certificate of the same has been placed before the Court which is annexure no. 14 to the affidavit in support of bail application. Learned counsel for the applicant has argued that the present case is a case of elopement and the victim is major. It is argued that the applicant has no other criminal antecedents as stated in para-28 of the affidavit and is in jail since 22.12.2020.
Per contra, learned State counsel and learned counsel for the first informant opposed the prayer for bail and argued that the applicant is named in the F.I.R. and then in the second statement of the prosecutrix under Section 161 Cr.P.C. He is stated to have married the proseutrix and has also established relationship with her due to which she became pregnant. It is argued that as such the applicant is involved in the present matter.
After having heard learned counsels for the parties and perusing the record, it is evident that the applicant is not named in the statements recorded under Section 161 and 164 Cr.P.C. of the prosecutrix and subsequently, in the second statement recorded under Section 161 Cr.P.C. she has named the applicant. The couple had approached this Court for quashing of the F.I.R. which was entertained and the petition was disposed of by staying their arrest and by passing certain directions in the matter. The present case appears to be 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- Sonu, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties (out of which one surety should be the family member of the applicant) 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 :- 26.10.2021 Naresh