Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40221 of 2018 Applicant :- Sumit Opposite Party :- State Of U.P.
Counsel for Applicant :- Anil Kumar Counsel for Opposite Party :- G.A.,Lokendra Pratap Singh
Hon'ble J.J. Munir,J.
Heard learned counsel for the applicant, Sri Ashutosh Pratap Singh, learned counsel for the complainant as well as Sri Indrajeet Singh Yadav, learned AGA, appearing for State.
This is a second bail application on behalf of the applicant Sumit in Case Crime No.172 of 2018, under Sections 363, 366, 376 IPC and Section 3/4 POCSO Act, P.S. Chandpa, District Hathras. The first bail application being Criminal Misc. Bail Application No.37398 of 2018 was dismissed by this Court for non-prosecution vide order dated 01.10.2018. Thus, virtually the present application is a first bail application.
Learned counsel for the applicant has submitted that he has been falsely implicated. It is further, argued that the applicant is a major and in support of said contention, the learned counsel for the applicant has invited the attention of this Court to a certificate issued by the C.M.O. Hathras dated 20.07.2018 where on the basis of an ossification test the age of the prosecutrix has been opined to be 18 to 19 years. He, therefore, submits that there can be little doubt that the applicant is a major. Learned counsel for the applicant has further invited the attention of the Court to the statement under Section 164 Cr.P.C. where the prosecutrix has said that on 15.07.2018 at about 3 to 4 pm she left home alongwith the applicant of her free will. She has further said that both of them have mutual liking. It is said that they left for Aligarh where they stayed on the Railway Station and went about the place. It is said by the prosecutrix that she was recovered by the police from the Gandhi Park area. Learned counsel for the applicant submits that looking to the said statement of the prosecutrix, the prosecution case stands belied.
Learned AGA has opposed the prayer for bail but does not dispute the fact that the prosecutrix going by the medico legal examination is a major, and the statement under Section 164 Cr.P.C. is exculpatory. Learned counsel for complainant has vehemently opposed the prayer for bail and submits that the prosecutrix is not a major.
Considering the overall facts and circumstances, the nature of allegations, the gravity of offence, the severity of the punishment, the evidence appearing against the accused, in particular, the fact that the prosecutrix appears to be a major going by the medico legal estimation of her age and further her categorical stand in the statement under Section 164 Cr.P.C. that is exculpatory, but without expressing any opinion on merits, this Court finds it to be a fit case for bail.
Accordingly, the bail application stands allowed.
Let the applicant Sumit involved in Case Crime No.172 of 2018, under Sections 363, 366, 376 IPC and Section 3/4 POCSO Act, P.S. Chandpa, District Hathras be released on bail on executing a 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 the period of detention of the applicant, it is directed that the trial pending before the concerned court below be concluded expeditiously, as early as possible, 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 recent 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 to ensure their presence positively.
Let a copy of the order be certified to the court concerned for strict compliance.
Order Date :- 30.10.2018 Neeraj