High Court

This is the second bail application as the first bail application has been rejected by Hon'ble Pankaj Bhatia, J. Second bail application has been released by the Court, therefore, it has been listed before the regular Court. The present applicant is in jail since 11.09.2022, in case crime no. 660 of 2022, under Sections 376 D.A. of IPC and under Section 5G/6 of POCSO Act at Police Station Mohammadi District Lakhimpur Kheri. Learned counsel for the applicant has stated that the present applicant has been falsely implicated as he has not committed any offence as alleged. Attention has been drawn towards annexure no. 15, which is the bail order of the co-accused, Nikhil @ Nikhil Kumar granted by this Court in Criminal Misc. Bail application No. 5494 of 2024 vide order dated 28.08.2024, which reads as under:- "1. Heard learned counsel for the applicant as well as learned A.G.A. and perused the record.

2. None appears on behalf of the respondent complainant despite service of notice.

3. Supplementary affidavit filed on behalf of the applicant is taken on record.

4. In terms of the F.I.R., the allegations were levelled against the applicant of commission of the offence under Section 376 I.P.C.

5. Learned counsel for the applicant argued that during trial, the prosecutrix has not supported the prosecution story. The statement of the prosecutrix has been filed alongwith supplementary affidavit. Hence, the applicant who is in custody since 11.9.2022 having no criminal antecedents, may be enlarged on bail.

6. Learned A.G.A. has opposed the prayer for bail.

7. Considering the fact that the prosecutrix has turned hostile and has not supported the prosecution story coupled with the fact that the applicant is in custody since 11.9.2022 having no criminal history, and there is nothing on record to demonstrate that the applicant if enlarged on bail, would in any way adversely affect the trial and without expressing any opinion on merit, I am of the view that the applicant is entitled to be released on bail.

8. Accordingly, the bail application is allowed.

9. Let the applicant Nikhil @ Nikhil Kumar be released on bail in FIR/ Case Case Crime No.660 of 2022, under Sections 376 DA I.P.C. and Section 5g/6 of the POCSO Act, Police Station Mohammadi, District Lakhimpur Kheri on his furnishing personal bonds and two reliable sureties of Rs.20,000/- each to the satisfaction of the court concerned with the following conditions :- (a) The applicant shall execute a bond to undertake to attend the hearings; (b) The applicant shall not commit any offence similar to the offence of which he is accused or suspected of the commission; and (c) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. " This Court has passed the order dated 12.12.2024, which reads as under:- "1. Heard Shri Shiv Sinha, learned counsel for the applicant and Shri Arun Kumar Verma, learned A.G.A. for the State.

2. Rejoinder affidavit filed today is taken on record.

3. This is second bail application of the applicant. The First Bail Application of the applicant bearing Criminal Misc. Bail Application No.741 of 2024 has been dismissed/rejected by a co-ordinate Bench (Hon'ble Mr. Justice Pankaj Bhatia) of this Court vide order dated 20.08.2024 and since the Hon'ble Judge, who has rejected the first bail application, has released this bail application, therefore, it has been listed before this court.

4. As per learned counsel for the applicant, the present applicant is languishing in jail since 11.09.2022, in Case Crime No.0660/2022, under Section 376 D.A. I.P.C. and Section 5G/6 of POCSO Act, at Police Station - Mohammadi, District - Kheri.

5. Learned counsel for the applicant has pointed out that the evidence of informant Avanish, eye witness Smt. Usha Devi and Narvir as well as of the victim/prosecutrix has been recorded. He has further submitted that co-accused Nikhil alias Nikhil Kumar has been granted bail by this Court on 28.08.2024, passed in Criminal Misc. Bail Application No.5494 of 2024. The consideration to grant bail to the said co-accused Nikhil alias Nikhil Kumar was that the statement of prosecutrix does not support the prosecution version properly.

6. On being asked as to whether all relevant witnesses/witnesses of fact as well as expert witnesses have been examined, Shri Arun Kumar Verma, learned A.G.A. has informed the court that except one eye witness Vandana and expert witnesses Dr. Alok Kumar and Dr. Archana, all other relevant/witnesses of fact have been examined.

7. Considering the aforesaid facts, I find it proper that the evidence of eye witness Vandana, expert witnesses Dr. Alok Kumar and Dr. Archana be recorded with expedition, so that, the present bail application could be disposed of on the next date.

8. Accordingly, the learned trial court concerned is directed to record the evidence of eye witness Vandana, expert witnesses Dr. Alok Kumar and Dr. Archana with expedition by fixing short dates and if possible, on day-to- day basis, as this matter relates to POCSO Act and if the aforesaid prosecution witnesses do not cooperate in the trial proceedings, any appropriate coercive steps may be taken by the learned trial court to ensure that the evidence of aforesaid persons/witnesses be recorded with expedition.

9. List this case on 9th January, 2025, within top ten cases.

10. Liberty is given to the learned counsel for the applicant to make a mention to take up this case out of turn.

11. Let the trial court be informed about this order through the District Judge, District Lakhimpur Kheri by the Registry of this Court within three working days for its compliance.

12. On the next date, if the evidence of aforesaid witnesses is recorded, copy thereof may be placed before the court.

13. Learned trial court concerned is also directed to inform this Court about the current status of the trial by the next date. " In compliance of the aforesaid order, the statement of the witness has been recorded on 03.01.2025 and the chief examination and cross-examination took place on the same date, wherein, no allegation of any kind whatsoever has been levelled against the present applicant as that statement has been annexed as annexure no. 1 with the supplementary affidavit filed on 07.01.2025. Learned counsel for the applicant has submitted that the present applicant is seeking parity with the co-accused Nikhil @ Nikhil Kumar, whose bail has been granted. The present applicant is having no prior criminal history of any kind whatsoever.The learned counsel has further submitted that if the applicant is released on bail, he shall shall cooperate in the trial proceedings and shall not misuse the liberty of bail. Further, the applicant shall abide by all terms and conditions of the bail order, the applicant may be enlarged on bail. Learned AGA for the State has also opposed the bail application but could not dispute the submission of the learned counsel for the applicant. Without entering into merits of the issue, considering the arguments of learned counsel for the parties; contents and allegations of the FIR and the fact that the present applicant is languishing in jail since 11.09.2022; there is no likelihood to conclude the trial in the near future; and undertaking of the applicant that he shall cooperate in the trial proceedings and shall not misuse the liberty of bail, I find it appropriate to release the applicant on bail. The bail application is allowed. Let the applicant- Vimal, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:- (i) The applicant shall file an undertaking to the effect that he 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 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 of the Indian Penal Code. (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. 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 him, in accordance with law, under Section 174-A of the Indian Penal Code. (iv) The applicant 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 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. Order Date :- 21.2.2025 Anurag

This is the second bail application as the first bail application has been rejected by Hon'ble Pankaj Bhatia, J. Second bail application has been released by the Court, therefore, it has been listed before the regular Court. The present applicant is in jail since 11.09.2022, in case crime no. 660 of 2022, under Sections 376 D.A. of IPC and under Section 5G/6 of POCSO Act at Police Station Mohammadi District Lakhimpur Kheri. Learned counsel for the applicant has stated that the present applicant has been falsely implicated as he has not committed any offence as alleged. Attention has been drawn towards annexure no. 15, which is the bail order of the co-accused, Nikhil @ Nikhil Kumar granted by this Court in Criminal Misc. Bail application No. 5494 of 2024 vide order dated 28.08.2024, which reads as under:- "1. Heard learned counsel for the applicant as well as learned A.G.A. and perused the record.

2. None appears on behalf of the respondent complainant despite service of notice.

3. Supplementary affidavit filed on behalf of the applicant is taken on record.

4. In terms of the F.I.R., the allegations were levelled against the applicant of commission of the offence under Section 376 I.P.C.

5. Learned counsel for the applicant argued that during trial, the prosecutrix has not supported the prosecution story. The statement of the prosecutrix has been filed alongwith supplementary affidavit. Hence, the applicant who is in custody since 11.9.2022 having no criminal antecedents, may be enlarged on bail.

6. Learned A.G.A. has opposed the prayer for bail.

7. Considering the fact that the prosecutrix has turned hostile and has not supported the prosecution story coupled with the fact that the applicant is in custody since 11.9.2022 having no criminal history, and there is nothing on record to demonstrate that the applicant if enlarged on bail, would in any way adversely affect the trial and without expressing any opinion on merit, I am of the view that the applicant is entitled to be released on bail.

8. Accordingly, the bail application is allowed.

9. Let the applicant Nikhil @ Nikhil Kumar be released on bail in FIR/ Case Case Crime No.660 of 2022, under Sections 376 DA I.P.C. and Section 5g/6 of the POCSO Act, Police Station Mohammadi, District Lakhimpur Kheri on his furnishing personal bonds and two reliable sureties of Rs.20,000/- each to the satisfaction of the court concerned with the following conditions :- (a) The applicant shall execute a bond to undertake to attend the hearings; (b) The applicant shall not commit any offence similar to the offence of which he is accused or suspected of the commission; and (c) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. " This Court has passed the order dated 12.12.2024, which reads as under:- "1. Heard Shri Shiv Sinha, learned counsel for the applicant and Shri Arun Kumar Verma, learned A.G.A. for the State.

2. Rejoinder affidavit filed today is taken on record.

3. This is second bail application of the applicant. The First Bail Application of the applicant bearing Criminal Misc. Bail Application No.741 of 2024 has been dismissed/rejected by a co-ordinate Bench (Hon'ble Mr. Justice Pankaj Bhatia) of this Court vide order dated 20.08.2024 and since the Hon'ble Judge, who has rejected the first bail application, has released this bail application, therefore, it has been listed before this court.

4. As per learned counsel for the applicant, the present applicant is languishing in jail since 11.09.2022, in Case Crime No.0660/2022, under Section 376 D.A. I.P.C. and Section 5G/6 of POCSO Act, at Police Station - Mohammadi, District - Kheri.

5. Learned counsel for the applicant has pointed out that the evidence of informant Avanish, eye witness Smt. Usha Devi and Narvir as well as of the victim/prosecutrix has been recorded. He has further submitted that co-accused Nikhil alias Nikhil Kumar has been granted bail by this Court on 28.08.2024, passed in Criminal Misc. Bail Application No.5494 of 2024. The consideration to grant bail to the said co-accused Nikhil alias Nikhil Kumar was that the statement of prosecutrix does not support the prosecution version properly.

6. On being asked as to whether all relevant witnesses/witnesses of fact as well as expert witnesses have been examined, Shri Arun Kumar Verma, learned A.G.A. has informed the court that except one eye witness Vandana and expert witnesses Dr. Alok Kumar and Dr. Archana, all other relevant/witnesses of fact have been examined.

7. Considering the aforesaid facts, I find it proper that the evidence of eye witness Vandana, expert witnesses Dr. Alok Kumar and Dr. Archana be recorded with expedition, so that, the present bail application could be disposed of on the next date.

8. Accordingly, the learned trial court concerned is directed to record the evidence of eye witness Vandana, expert witnesses Dr. Alok Kumar and Dr. Archana with expedition by fixing short dates and if possible, on day-to- day basis, as this matter relates to POCSO Act and if the aforesaid prosecution witnesses do not cooperate in the trial proceedings, any appropriate coercive steps may be taken by the learned trial court to ensure that the evidence of aforesaid persons/witnesses be recorded with expedition.

9. List this case on 9th January, 2025, within top ten cases.

10. Liberty is given to the learned counsel for the applicant to make a mention to take up this case out of turn.

11. Let the trial court be informed about this order through the District Judge, District Lakhimpur Kheri by the Registry of this Court within three working days for its compliance.

12. On the next date, if the evidence of aforesaid witnesses is recorded, copy thereof may be placed before the court.

13. Learned trial court concerned is also directed to inform this Court about the current status of the trial by the next date. " In compliance of the aforesaid order, the statement of the witness has been recorded on 03.01.2025 and the chief examination and cross-examination took place on the same date, wherein, no allegation of any kind whatsoever has been levelled against the present applicant as that statement has been annexed as annexure no. 1 with the supplementary affidavit filed on 07.01.2025. Learned counsel for the applicant has submitted that the present applicant is seeking parity with the co-accused Nikhil @ Nikhil Kumar, whose bail has been granted. The present applicant is having no prior criminal history of any kind whatsoever.The learned counsel has further submitted that if the applicant is released on bail, he shall shall cooperate in the trial proceedings and shall not misuse the liberty of bail. Further, the applicant shall abide by all terms and conditions of the bail order, the applicant may be enlarged on bail. Learned AGA for the State has also opposed the bail application but could not dispute the submission of the learned counsel for the applicant. Without entering into merits of the issue, considering the arguments of learned counsel for the parties; contents and allegations of the FIR and the fact that the present applicant is languishing in jail since 11.09.2022; there is no likelihood to conclude the trial in the near future; and undertaking of the applicant that he shall cooperate in the trial proceedings and shall not misuse the liberty of bail, I find it appropriate to release the applicant on bail. The bail application is allowed. Let the applicant- Vimal, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:- (i) The applicant shall file an undertaking to the effect that he 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 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 of the Indian Penal Code. (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. 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 him, in accordance with law, under Section 174-A of the Indian Penal Code. (iv) The applicant 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 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. Order Date :- 21.2.2025 Anurag