Case called out in the revised call. None has appeared on behalf of informant.
Pursuant to earlier order of this Court dated 13.01.2021, the Court is in receipt of the Age Certificate of the victim girl issued by the panel of doctors dated 6.2.2021. The Court has perused the aforesaid Age Certificate, in which the doctors have opined that the age of the girl is approximately 17 years. On this premise, the Court proposes to proceed with the case on merits.
Heard Shri Balram Bind, Advocate holding brief of learned counsel for the applicant, learned A.G.A. and also perused the record.
By means of the present bail application the applicant, who is facing prosecution in connection with Case Crime No.383 of 2020, u/s 363, 366, 376 I.P.C. and Section of POCSO Act, P.S.-Fazalganj, District-Kanpur Nagar, is seeking his enlargement on bail during trial. The applicant is in jail since 21.8.2020.
Submission of learned counsel for the applicant is that initially the F.I.R. was registered u/s 363, 366 I.P.C. by Shri Krishna Verma, father of the victim girl on 12.8.2020 alleging therein that her daughter (the victim) went to attend the coaching and she did not come back. He gathered information that on the date of incident she was talking with the applicant. On the very next date she appeared and her statement u/s 161 Cr.P.C. was recorded and medical examination was conducted. From the statement u/s 161 Cr.P.C. the victim seems to be in consensual relationship with the applicant as she states that on her own she went along with the applicant and she does not want to go in the company of her parent. Giving the benefit of two years either way, the victim girl comes to be major one. In the medical examination the victim girl has clearly stated that she was never subjected to any sexual assault by the applicant. There was no abnormality seen over her private organs or over her body. But in 164 statement on 17.8.2020 in the custody of her parent, she has somersaulted by 180 degree and alleged that she has been raped by Vishal, Pankaj Paswan and Bharat Yadav. There is no plausible explanation coming forward for this drastic and dramatic shift in her stand whereas she herself stated before the doctor that she has never been ravished by anyone. Learned counsel for the applicant on this score submits that this is a case of tutoring where a vague attempt to falsely implicate the applicant in this heinous offence has been made.
Learned A.G.A. has opposed the prayer for bail but could not dispute the above facts.
Keeping in view the nature of the offence, evidence on record regarding complicity of the accused, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018)3 SCC 22 and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
Let the applicant Vishal [email protected] Kaka, who is involved in aforementioned case crime 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 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.
(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS COUNSEL. IN CASE OF HIS ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM UNDER SECTION 229-A IPC.
(iii) 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 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 HIM 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.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 7.4.2021 M. Kumar