Court No. - 78
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36063 of 2021 Applicant :- Vijay Prtap Ved @ Vijay Pratap @ Ved Opposite Party :- State Of U.P And Another Counsel for Applicant :- Vineet Kumar Singh Counsel for Opposite Party :- G.A.,Pawan Kumar
Hon'ble Samit Gopal,J.
Heard Sri Vineet Kumar Singh, learned counsel for the applicant, Sri Pawan Kumar, learned counsel for the first informant and Sri B.B. Upadhyay, learned counsel for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Vijay Prtap Ved @ Vijay Pratap @ Ved, seeking enlargement on bail during trial in connection with Case Crime No. 106 of 2021, under Sections 363, 366, 376, 120-B I.P.C. 3/4 POCSO Act, registered at Police Station Kothibhar, District Maharajganj.
Learned counsel for the applicant argued that although the applicant is named in the First Information Report along with two other accused persons and there is an allegation that he enticed away minor daughter aged about 16 years of the first informant but the same is false and incorrect. It is argued that the prosecutrix was interrogated under Section 161 Cr.P.C. wherein she states that she went from her house out of her own sweet will. She knew the applicant since last one year and there was some discussion between them with regards to marriage. The applicant gave her a mobile on which she communicated to him. She went with him on a motorcycle to Toothabari from where they went Nepal and stayed there in a rented room where they were living like husband and wife. There was no resistance by the prosecutrix to the same. Even physical relationship was established.
It is further argued that in her statement recorded under Section 164 Cr.P.C. she states that she does not know the applicant. She has no relationship with the applicant. She went from her house out of her own sweet will. She stayed at the house of her friend and then went to another place and stayed there in a rented room.
It is further argued that the applicant is not named in the statement under Section164 Cr.P.C. nor any overt act has been assigned to him. It is further argued that the prosecutrix was produced before the doctor wherein she refused her medical examination. It is argued that although she was subjected to x- ray examination but there is no opinion of the doctor with regards to the age of the prosecutrix. It is argued that the implication of the applicant in the present case is false. He further argued that the applicant has no criminal history as stated in para 27 of the affidavit and is in jail since 08.07.2021.
Per contra, learned counsel for the first informant and learned counsel for the State opposed the prayer for bail and argued that the applicant is named in the First Information Report and even in the statement under Section 161 Cr.P.C. of the prosecutrix. The prosecutrix has stated that the applicant established physical relationship. It is argued that the prosecutrix is a minor as per the school certificate.
After having heard learned counsels for the parties and perusing the records, it is evident that the applicant is not named in the statement under Section 164 Cr.P.C. of the prosecutrix. There is no overt act assigned to him. The prosecutrix in her statement under Section 161 Cr.P.C. states that she went from her house out of her own sweet will.
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 Vijay Prtap Ved @ Vijay Pratap @ Ved, 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 :- 24.12.2021 M. ARIF (Samit Gopal, J.)