Court No. - 67
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29035 of 2021 Applicant :- Vipin Kumar @ Upendra Opposite Party :- State Of U P And Another Counsel for Applicant :- Anand Pati Tiwari Counsel for Opposite Party :- G.A.,Bratendra Singh
Hon'ble Rahul Chaturvedi,J.
Heard Sri Anand Pati Tiwari, learned counsel for the applicant, Sri Bratendra Singh, learned counsel for the complainant and the learned AGA appearing on behalf of the State.
Applicant is in jail since 12.03.2021 in connection with Case Crime No. 78 of 2019 under Sections 323, 504, 506, 363, 366,376 IPC and Section 3/4 POCSO Act, P.S. Bewar District Mainpuri.
Contention raised by the learned counsel for the applicant is that the present FIR has been registered by Grish Chand on 25.02.2019 for the incident of 09.02.2019 under Sections 363, 366, 323, 504, 506 IPC and 7/8 of POCSO Act against Vipin Kumar, the applicant and for others. As per the allegation made in the FIR, the informant's daughter aged about seventeen years was enticed away by the applicant while she was going to Amir Singh Inter College, Tiliyani, Nabiganj, Mainpuri. It is submitted that while joining the company of the applicant, the prosecutrix has taken Rs. one lac in cash and ornaments of worth of Rs. one lac and twenty thousand. It is further submitted that it is clear that she has gone with the applicant according to her free will and came back on 20.02.2019. Contention is that it is a clear cut case of consensual relationship.
Learned A.G.A has opposed the prayer for bail but does not dispute the aforesaid facts.
I have also perused the statement of the victim under Section 164 Cr.P.C. annexed at page no. 41 in which she speaks that she remains in the company of applicant from 09.02.2019 to 20.02.2019 and visited Agra. She has handed over the entire amount to the applicant and she still wants to marry with the applicant. As per High School certificate her age, on the date of incident, she is about seventeen years and seven months, but medical report indicates that she is aged about eighteen years. A perusal of the statement of the victim shows that she remains in the company of the applicant about 11-12 days and while going, she has taken out all the cash and valuable ornaments from her parent's home and handed over the same to the applicant.
Leared counsel for the complainant submits that in the event the money is returned, the informant would withdraw his FIR. Thus, in fact, the present FIR has been lodged to harass the applicant, which is not permissible.
Keeping in view the nature of the offence, evidence, complicity of the accused and submissions of learned counsel for the parties, I am of the view that the applicant has made out a case for bail.
Let the applicant, Vipin Kumar @ Upendra, who is involved in Case Crime No. 78 of 2019 under Sections 323, 504, 506, 363, 366,376 IPC and Section 3/4 POCSO Act, P.S. Bewar District Mainpuri be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.
(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT SHE 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.
(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HER COUNSEL. IN CASE OF HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HER 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 HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) 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 HER IN ACCORDANCE WITH LAW.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.
Since the bail application has been decided under extra-ordinary circumstances, thus in the interest of justice following additional conditions are being imposed just to facilitate the applicant to be released on bail forthwith. Needless to mention that these additional conditions are imposed to cope with emergent condition-:
1. The applicant shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored.
2. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
3. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
4. 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 :- 26.10.2021 Deepak Digitally signed by RAHUL CHATURVEDI Date: 2021.10.27 11:24:56 IST Reason: Document Owner Location: High Court of Judicature at Allahabad