Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44665 of 2021 Applicant :- Vikas Opposite Party :- State Of U P And Another Counsel for Applicant :- Shad Khan,Mumtaz Ali Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Heard Sri Shad Khan, learned counsel for the applicant, Sri Jalaj Kumar Tripathi, learned counsel for the first informant and Sri Pankaj Mishra, learned counsel for the State and perused the material on record.
Sri Jalaj Kumar Tripathi appearing on behalf of the first informant is permitted to file his Vakalatnama in the office by tomorrow. If any such Vakalatnam is filed, office is directed to trace out the same and place it on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Vikas, seeking enlargement on bail during trial in connection with Case Crime No. 318 of 2021, under Sections 363, 366, 376(2)n I.P.C. & Section 6 POCSO Act, registered at Police Station Bitharichainpur, District Bareilly.
The prosecution case as per the first information report lodged on 28.07.2021, under Section 363 I.P.C. by Ram Bahadur naming the applicant and two other co-accused persons is that on 26.07.2021 at about 5 PM, his daughter aged about 16 years has been enticed away by the applicant. Karan Singh and Kamlesh have helped them in the same. His daughter has taken away Rs. 40,000/- and jewellery of about 1 lakh.
Learned counsel for the applicant argued that the present case is a case of consent. It is argued that the prosecutrix in her statements recorded under Section 161 Cr.P.C. and under Section 164 Cr.P.C. has stated that she was in love with the applicant and she has eloped with him, the copies of the said statements have been annexed as Annexures-2 & 3 to the supplementary affidavit respectively. It is argued that there is no external injury seen on the body of the deceased when she was produced for medical examination and even there is no injury on her private parts, the copy of the medical examination is annexed as Annexure-4 to the supplementary affidavit. It is argued that the prosecutrix was subjected to medical examination and was also produced before the Chief Medical Officer, Bareilly, the copy of which is annexed as Annexure-5 to the supplementary affidavit, who has opined her age to be about 19 years and as such, she is a major. The case is a case of elopement. It has also been pointed out that the applicant is not having any criminal history as stated in para 6 of the affidavit and he is in jail since 31.07.2021.
Per contra, learned counsel for the first informant and learned counsel for the State have opposed the prayer for bail and argued that the applicant is named in the first information report and he has enticed away the prosecutrix. The applicant is involved in the present case.
After having heard the learned counsel for the parties and perusing the record, it is evident that the prosecutrix has stated that she was in love with the applicant and has eloped with him. The present case appears to be 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- Vikas, 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.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
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 :- 27.10.2021 AS Rathore Digitally signed by Justice Samit Gopal Date: 2021.10.28 18:20:59 IST Reason: Document Owner Location: High Court of Judicature at Allahabad