High Court
Case Details
Neutral Citation No. - 2023:AHC:151351 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30578 of 2023 Applicant :- Vishal Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Chandra Bhushan Prasad Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Legal Reasoning
Heard Mr. Chandra Bhushan Prasad, the learned counsel for the applicant and the learned A.G.A. for State. Perused the record. This bail application has been filed by the applicant Vishal, seeking his enlargement on bail in Case Crime No. 126 of 2023, under Sections 363, 376 IPC read with Sections 3/4 POCSOAct, P.S. Mansoorpur, District Muzaffar Nagar, during the pendency of the trial. At the very outset, the learned A.G.A. submits that notice of present application for bail has been served upon first informant opposite party 2 on 10.7.2023. However, in spite of service of notice, no one has put in appearance on her behalf to oppose this application for bail. Learned counsel for applicant contends that applicant is innocent. He has been falsely implicated in above mentioned case crime number. Prosecutrix in her statements under Sections 161 and 164 Cr. P. C. has not supported the F.I.R. To the contrary, she has stated that she herself accompanied the applicant. As such prosecutrix is a willing and consenting party. Provisions of POCSO Act have been enforced upon the applicant on the basis of date of birth recorded in the School Certificate recovered by the Investigating Officer during the course of investigation. Same is on record at page 35. However, in the said School Leaving Certificate, it is categorically transcribed that prosecutrix took admission in the institution on 1.4.2017. The reason assigned for leaving the school is that the prosecutrix has passed the 8th Examination. In view of above, aforesaid certificate does not disclose the date of birth of prosecutrix recorded in the institution, where she first studied. As per Section 94 of the Juvenile Justice Care and Protection Act 2015, the said certificate cannot be taken into consideration for determining the date of birth of the prosecutrix. The prosecutrix in her statements has herself stated that she is about aged about 21 years. There is nothing on record upto this stage on the basis of which the provisions of the POCSO Act could be attracted against applicant. The police report in terms of Section 173 (2) Cr. P. C. i.e. charge sheet has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant. It is thus urged that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. Per contra, the learned A.G.A. has opposed the prayer for bail. However, he could not dislodge the factual/legal submissions urged by the learned counsel for applicant with reference to the record at this state. Having heard the learned counsel for applicant, the learned A.G.A. for state, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made and coupled with the fact that that prosecutrix herself accompanied the applicant, the prosecutrix is a willing and consenting party, prosecutrix in her statement has herself stated that she is about aged about 21 years, the clean antecedents of applicant, there is no such legal material upto this stage. On the basis of which it can be inferred that the prosecutrix is below 19 years of age and the period of incarceration undergone, but without making any comments on the merits of the case, the applicant has made out a case for bail. Accordingly, the bail application is allowed. Let the applicant Vishal involved in aforesaid case crime number, be released on bail on his furnishing a personal bond with two heavy sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice :- (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 I.P.C.. (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 I.P.C. (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. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his 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 :- 27.7.2023 HSM Digitally signed by :- HARI SHANKER MISHRA High Court of Judicature at Allahabad