High Court
Case Details
Court No. - 88 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41691 of 2021
Legal Reasoning
Applicant :- Pushpendra Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Purushottam Dixit,Kuldeep Singh Yadav Counsel for Opposite Party :- G.A.,Sumod Kumar Srivastava Hon'ble Samit Gopal,J. Heard Sri Purushottam Dixit and Sri Kuldeep Singh Yadav, learned counsel for the applicants, Sri Sumod Kumar Srivastava, learned counsel for the first informant, Sri Raj Kumar Gupta, learned counsel for the State and perused the material on record. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant - Pushpendra Kumar, seeking enlargement on bail during trial in connection with Case Crime No. 81 of 2021, under Sections 363, 366, 376 I.P.C. and Section 3/4 of the Protection of Children from Sexual Offences Act, registered at P.S. Chaubiya, District - Etawah. The first information report was lodged on 11.6.2021 by Ramesh, the father of the prosecutrix, against unknown persons alleging therein that on 1.6.2021 at about 11.30 p.m. his daughter aged about 16 years and six months was lured by some unknown persons and enticed away. He had received phone calls from two different mobile but there was no talks on it. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the prosecutrix was subsequently recovered on 14.6.2021. Learned counsel for the applicant further argued that as per the prosecution case, the prosecutrix was taken away from her house on 1.6.2021 but the first information report has been lodged on 11.6.2021 under Section 363 I.P.C. only, which is after ten days of her going away for which there is no plausible explanation. It is argued that in her statement under Section 161 Cr.P.C., she states that she called the applicant to a place after which she went there and from there they went to a building where physical relationship was established between them with her consent. Subsequently, in her statement under Section 164 Cr.P.C., she reiterates the same version but states that physical relationship was established without her consent. It is argued that there is variation in both the statement of the prosecutrix. It is argued that as per the supplementary medical examination, the prosecutrix was opined to be 18 years age, as such, she is major. It is further argued that while placing paragraph 14 of the affidavit that the applicant had moved an application before the S.S.P., Etawah making allegations against Ramesh Chand, the informant, and his brother Manoj for cruelty and demand of dowry. Manoj was married to Smt. Sarita, who is the sister-in- law (Sali) of the applicant. Copy of the said application is also placed before the Court, which is annexure-7 o the affidavit in support of the Bail Application. It is argued that the same is the reason for his false implication. It is argued that the applicant is having no criminal history as stated in paragraph 16 of the affidavit and is in jail since 15.6.2021. Per contra, learned counsel for the State and learned counsel for the first informant have opposed the prayer for bail and argued that as per the prosecution case, the prosecutrix is a minor girl. As per the School record, she would be around 16 years of age. In her statement under Section 164 Cr.P.C., she has levelled allegation against the applicant of establishing forcible physical relationship. It is argued that the applicant is involved in the present case and therefore, his bail application may be rejected. After having heard learned counsel for the parties and perusing the records, it is evident that there are variation in both the statements of the prosecutrix. As per supplementary medical examination, the prosecutrix is aged about 18 years. In her statement under Section 161 Cr.P.C. she states of going with the applicant with consent and establishing physical relationship with consent. Let the applicant - Pushpendra Kumar, be released on bail in the aforesaid case crime number on furnishing a personal bond and two 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:- 1. The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever. 2. The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever. 3. 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. 4. The applicant will not misuse the liberty of bail in any manner whatsoever. 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. 5. 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 and the trial court may proceed against him under Section 229-A IPC. The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison. The bail application is allowed. (Samit Gopal, J.) Order Date :- 15.2.2022 nd Digitally signed by NISITH DEY Date: 2022.02.16 10:38:58 IST Reason: Location: High Court of Judicature at Allahabad