Court No. - 67
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29756 of 2021 Applicant :- Vishal Sonkar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Manvendra Nath Singh,Nar Singh Narayan Verma Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard Mr. Manvendra Nath Singh, learned counsel for the applicant, learned A.G.A for the State and perused the record.
By means of this application, the applicant, who is involved in Case Crime No. 43 of 2021, under Sections 363,366, 376,504,506,120-B I.P.C. and Section 3/4 POCSO Act, Police Station Jangipur, District Ghazipur is seeking enlargement on bail during the trial.
It is submitted by the learned counsel for the applicant that the victim's brother-in-law has lodged the present FIR mentioning the age of the prosecutrix 15 years. It is alleged in the FIR that the prosecutrix has been enticed away by the applicant, Vishal Sonkar. It is contented by the learned counsel for the applicant that the applicant and the victim have earlier approached this Court by means of Criminal Misc. Writ Petition No. 2531 of 2021, whereof the Division Bench of this Court vide order dated 08.04.2021, has directed to surrender before the Chief Judicial Magistrate, who shall got an ossification test done of the prosecutrix from the District Government Hospital in order to ascertain the age of the girl. During the course of investigation, it was revealed that the age of the girl is more than 17 years. Besides this, the prosecutrix's statements under Cr.P.C. Sections 161 and 164 have been recorded, where she has spoken exculpatory and has accused her own brother-in-law for alleged act of molestation. She has further stated there that infuriated by the conduct of her own brother-in-law, she joined the company of her boyfriend, the applicant. The prosecutrix along with the applicant visited several places, to wit, Allahabad, Maihar and Varanasi, where they solemnized marriage. It is further contended that the applicant and prosecutrix are living together as man and wife peacefully.
Learned A.G.A. have vehemently opposed the bail plea of the applicant but does not dispute the fact that the prosecutrix in her statements under Section 161 and 164 Cr.P.C. has spoken exculpatory.
Keeping in view the nature of the offence, evidence, complicity of the accused and submissions of learned counsel for the parties, in particular, the fact that the prosecutrix is 17 years old and has married with the applicant of her own will, I am of the view that the applicant has made out a case for bail.
Let the applicant, Vishal Sonkar, who is involved in Case Crime No. 43 of 2021, under Sections 363,366, 376,504,506,120-B I.P.C. and Section 3/4 POCSO Act, Police Station Jangipur, District Ghazipur, 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 a computer generated copy of this order downloaded from the official website of High Court Allahabad.
3. The computer generated copy of this order shall be self attested by the counsel of the party concerned.
4. The Court/Authority/Official concerned shall verify the authenticity of the computerized copy of the order from the official Order Date :- 28.10.2021 Brijesh Maurya