Court No. - 66
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26500 of 2020 Applicant :- Yogesh Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kuldeep Singh Tomar Counsel for Opposite Party :- G.A.,Chhavi Kant Vashistha,Mahesh Kumar Kuntal,Ulajhan Singh Bind connected with Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48372 of 2020 Applicant :- Vipin @ Kanhaiya @ Vipendra Opposite Party :- State of U.P. and Another Counsel for Applicant :- Prem Prakash Yadav,Brijesh Kumar Counsel for Opposite Party :- G.A.,Chhavi Kant Vashistha,Mahesh Kumar Kuntal
Hon'ble Ali Zamin,J.
Heard learned counsel for the applicants, learned A.G.A. for the State as well as learned counsel for the informant and perused the material on record.
The present bail application has been filed by the applicants with a prayer to enlarge them on bail in Case Crime No.213 of 2020, under Sections 376-D, 363, 366, 506 I.P.C. & 5(g)/6 POCSO Act, 2012, P.S. Quarsi, District Aligarh.
Learned counsel for the applicants submits that according to F.I.R. version on 26.01.2020 applicants enticed away the victim aged about 14 years and she took away along with her Rs.1,00,000/- cash and jewellery of amounting three lakhs and on information of the persons of mohalla victim was caught by informant at police out post C.D.F., on seeing the informant applicants fled away and victim disclosed the prior incident occurred with her. It is also alleged that applicants prepared a video and on the pretext of the video they used to blackmail and commit misdeed upon her, on receiving this information, informant complained in the police station Nagla Patwari and applicants were arrested but they were released after some time for the reason that the said incident did not occur in its jurisdiction and no further compliant was made by the informant. Thereafter on 18.02.2020 applicants again black- mailed the victim and tried to call her. He further submits that incident occurred on 26.01.2020 and F.I.R. was lodged on 02.03.2020. He further submits that another F.I.R. about the incident of 06.03.2021 has been lodged on 07.03.2021 against unknown persons in which the victim was recovered from the district Rohtas, State of Bihar and one Amit has been charge- sheeted. Further submits that to extort money the F.I.R. has been lodged by the informant. He also submits that as per CDR location of the applicants at the time of incident has been found in Debai district Bulandshahar and incident has occurred in the District Aligarh and as per supplementary affidavit she had love affair with one Mortine regarding which photographs has been attached. There is no possibility of the applicants of fleeing away from the judicial process or tampering with the witnesses and, in case, the applicants are enlarged on bail, the applicants shall not misuse the liberty of bail. It is next contended that there are no criminal history of the applicants and are languishing in jail since 08.03.2020.
Per contra, learned A.G.A. as well as learned counsel for the informant opposed the bail prayer of the applicants and submits that as per school certificate annexed with supplementary affidavit date of birth of the victim is 12.12.2005, according to which at the time of incident victim was 13 years and 10 months old and as per radiological report age of the victim has been ascertained 18 years. It is also submitted that as per statement under Section 164 Cr.P.C., the victim has stated that in the month of September applicants took away the victim and committed rape upon her and on 26.01.2021 co-accused Vipin @ Kanhaiya @ Vipendra asked her to keep cash and jewellery by saying to go with some persons and also asked to contact on phone with Yogesh Kumar when she contacted him on phone, he called her on a tap, while going her father Rishipal Singh saw and caught her. As per statement under Sections 161 & 164 Cr.P.C., she has leveled allegation of rape against the applicants, therefore, they are not entitled for bail.
Considering the facts and circumstances of the case as well as submissions advanced by learned counsel for the parties, incident occurred on 26.01.2020 F.I.R. lodged on 02.03.2020 subsequent to it another F.I.R. lodged on 07.03.2020 regarding incident of 06.03.2020 in which one Amit was charge-sheeted and radiological age of the victim, without expressing any opinion on merit of the case, the applicants are entitled for bail, let the applicants- Yogesh Kumar and Vipin @ Kanhaiya @ Vipendra involved in aforesaid case crime be released on bail on their furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions :-
(i) The applicants shall file an undertaking to the effect that they will not tamper with the evidence and will not pressurize/intimidate the prosecution witnesses and will cooperate with the trial. The applicants shall not seek any adjournment on the dates 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 applicants shall remain present before the trial court on each date fixed, either personally or through their counsel. In case of their absence, without sufficient cause, the trial court may proceed against them under Section 229-A of the Indian Penal Code.
(iii) In case, the applicants misuses the liberty of bail during trial and in order to secure their presence proclamation under Section 82 Cr.P.C. is issued and the applicants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicants shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicants are 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 them in accordance with law.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
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. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Order Date :- 25.10.2021 Jitendra