Court No. - 78
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34648 of 2021 Applicant :- Thakurdas Maurya Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sudhir Kumar Tiwari Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Heard Sri Sudhir Kumar Tiwari, learned counsel for the applicant as well as Sri Sanjay Kumar Singh, learned counsel for the State and perused the record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant, seeking enlargement on bail during trial in connection with Case Crime No.278 of 2021, under Sections 354, 354-Ka, 354-Kha, 354-Ga, 323, 506, & 376/511, I.P.C. and Section 7/8/15 Protection of Children from Sexual Offences Act, registered at Police Station Subhash Nagar, District Bareilly.
Notice was issued to the opposite party no.2 vide order dated 11.11.2020.
As per the office report dated 07.12.2021, the report of Chief Judicial Magistrate, Bareilly dated 02.12.2021 has been received, which states about service of notice on the opposite party no.2 A perusal of the said report and the police report annexed alongwith it, it is apparent that notice has been served on the opposite party no.2 on 02.11.2021.
The matter has been taken up in the revised list. No one appears on behalf of the opposite party no.2, even when the matter has been taken up in the revised list.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that although the applicant is named in the first information report and there is an allegation that he captured some photographs of the daughter of the first informant while she was taking bath and also on another date disrobing her, is false and incorrect. During investigation the investigating officer took the mobile of the applicant but did not find any such objectionable photographs of the girl. It is argued that in the first information report, the statement under section 161 Cr.P.C. and 164 Cr.P.C. of the prosecutrix, although there is an allegation on the applicant of outraging her modesty, but the same is false and with malafide intention. Learned counsel for the applicant has argued that the prosecutrix was produced before the doctor, where she denied for her medical examination. The first informant, who is the mother of the prosecutrix, was living in the house of the brother-in-law of the applicant and the applicant met them several times. There was some monitory dispute between the parties and when the applicant was demanding his money back, after which present first information report has been lodged against the applicant falsely implicating him. It is argued that the applicant has no other criminal antecedents as stated in para-26 of the affidavit and is in jail since 05.07.2021.
Per contra, learned counsel for the State opposed the prayer for bail and argued that the prosecutrix has in her statement under sections 161 Cr.P.C. and 164 Cr.P.C. stated that applicant has outraged her modesty. It is argued that the applicant is named in the first information report and there are allegation against him.
After having heard learned counsels for the parties and perusing the record, it is evident that there is some dispute between the parties with regard to money. The prosecutrix has refused her medical examination when she was produced before the doctor. The applicant has no other criminal antecedents. No such photographs were recovered during investigation and even in the mobile of the applicant, which was taken by the investigating officer.
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-Thakurdas Maurya, 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.
Order Date :- 20.12.2021 VKG (Samit Gopal, J.)