Court No. - 67
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1313 of 2021 Applicant :- Sultan And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rafeek Ahmad Khan Counsel for Opposite Party :- G.A.,Virendra Singh Parmar
Hon'ble Rahul Chaturvedi,J.
Heard Sri Rafeek Ahmad Khan, learned counsel for the applicant, Sri Virendra Singh Parmar, learned counsel for the informant, learned A.G.A for the State and perused the record.
This bail application has been filed on behalf of the applicants- Sultan and Allu, who are facing prosecution in S.T. No. 79 of 2015 (State vs. Salman) arising out of Case Crime No. 3210 of 2014, pending in the court of Addl. Sessions Judge, Mahoba, under Sections 363, 366 I.P.C., P.S. Kotwali Mahoba, District- Mahoba, seeking enlargement on bail during the trial.
Learned counsel for the applicant submitted that after getting the bail application rejected vide order dated 5.12.2020, the present bail application has been filed by the applicants. Submission made by learned counsel for the applicants is that way back in the year 2014 an F.I.R. was lodged by the mother of the victim against six named accused persons including the applicants as Case Crime No. 3210 of 2014, u/s 147, 148, 149, 452, 364 and 506 I.P.C. During investigation neither in the statement u/s 161 Cr.P.C. nor in statement u/s 164 Cr.P.C. there was any allegation of gang rape made by the victim and consequently, the Police has dropped the name of applicants from the charge sheet. During the course of investigation, in exercise of power under Section 319 Cr.P.C., the applicants were summoned under Section 363 and 366 I.P.C. Consequently, vide order dated 4.8.2016 the applicant were enlarged on bail by Addl. Sessions Judge (F.T.C.) Mahoba. During trial relying upon the testimony of the victim as PW-2, as she has for the first time made allegation of gang rape upon her, the charges were amended against the applicants accordingly and were taken into custody for the offence u/s 376-D, 506 I.P.C. and 6 POCSO Act which were added as additional charges and vide impugned order the bail application of the applicants was declined by the learned Sessions Judge. The applicants are in jail since 2.12.2020.
It has been contended by the learned counsel for the applicant that from the date of institution of the case i.e. year 2014 till recording of the statement of the victim as PW-2 on 5.1.2019 she has never whispered about any allegation of gang rape upon her and for the first time she is revealing the fact without getting her medically examined which makes the entire prosecution story doubtful and with particular motive this fact has not be disputed by the learned counsel for the informant.
Taking into account the circumstances of this case where the victim has never uttered a single word of gang rape during last six years and all of a sudden she made accusation with regard to gang rape is an unswallowable proposition and the applicants deserve to be bailed out.
Learned counsel for the informant and learned A.G.A opposed the prayer for bail but could not dispute the aforesaid facts and the legal submissions as argued by the learned counsel for the applicants.
Keeping in view the nature of the offence, evidence, complicity of the accused and submissions of learned counsel for the parties, I am of the view that the applicants have made out a case for bail.
Let the applicant- Sultan and Allu, 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/APPLICANTS SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE/THEY SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE WHEN THE WITNESSES IS/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.
(ii) THE APPLICANT/APPLICANTS SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER/THEIR COUNSEL. IN CASE OF HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIS/HER/THEIR UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT/APPLICANTS MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT/APPLICANTS FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIS/HER/THEIR, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) THE APPLICANT/APPLICANTS 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/APPLICANTS IS/ARE 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 HIS/HER/THEIR IN ACCORDANCE WITH LAW.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT/APPLICANTS.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail .
Since the bail application has been decided under extra-ordinary circumstances, thus in the interest of justice following additional conditions are being imposed just to facilitate the applicant/applicants to be released on bail forthwith. Needless to mention that these additional conditions are imposed to cope with emergent condition-:
1. The applicant/applicants shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is/are restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored.
2. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
3. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
4. 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 :- 8.4.2021 Vandana