Court No. - 78
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13957 of 2021 Applicant :- Surendra Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sharda Prasad Mishra,Karan Pandey Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Matter taken up in the revised list.
Heard Sri Sharda Prasad Mishra, 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 first informant/opposite party no. 2 vide order dated 4.10.2021.
Learned A.G.A. has filed a compliance affidavit dated 20.10.2021 annexing therein the report of the concerned police station stating therein that notice has been served on the first informant/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 Surendra, seeking enlargement on bail during trial in connection with Case Crime No. 589 of 2020, under Sections 363, 366, 376 I.P.C. and Section 3/4 POCSO Act, registered at P.S. Majhola, District Moradabad.
Learned counsel for the applicant argued that the F.I.R. of the present case was lodged under Sections 363, 366 I.P.C. by Smt. Sunita, the mother of the prosecutrix, alleging therein that the applicant has enticed away her minor daughter aged about 15 years. Learned counsel has placed before the Court the statements of the prosecutrix recorded under Sections 161 and 164 Cr.P.C. and argued that in her statements the prosecutrix stated that she went with the applicant out of her own sweet will. The prosecutrix was produced before the doctor but she refused her external and internal medical examination, but her medical examination for ascertainment of age was conducted in which the Chief Medical Officer, Moradabad vide his certificate dated 28.5.2020 has opined her age to be of about 17 years. It is argued that by giving benefit of variation of two years, she would be a major girl. Learned counsel has argued that the prosecutrix has in specific terms stated that she went with the applicant out of her own sweet will and has also solemnized marriage with the applicant in her statements recorded under Sections 161 and 164 Cr.P.C. She further states that she knew the applicant since last two years. It is argued that the present case is a case of elopement. The applicant is in jail since 12.10.2020.
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 refused her medical examination externally or internally. The C.M.O. concerned has opined her age to be about 17 years and by giving variations of two years, she would be a major girl. The prosecutrix in her statements under Sections 161 and 164 Cr.P.C. has stated that she went with the applicant out of her own sweet will. The present case 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- Surendra, 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.
(Samit Gopal,J.) Order Date :- 22.12.2021 Naresh