High Court
Case Details
Court No. - 71 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49998 of 2021 Applicant :- Sonu Opposite Party :- State of U.P. Counsel for Applicant :- Geetam Singh,Rajesh Kumar Verma Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
Legal Reasoning
Heard Sri Rajesh Kumar Verma, learned counsel for the applicant and Sri B.B. Upadhyay, learned counsel for the State and perused the material on record. This is second bail application of the applicant. The first bail application of the applicant was rejected by this Court for want of prosecution vide order dated 28.10.2021 passed in Criminal Misc. Bail Application No. 43477 of 2021 (Sonu vs. State of U.P.). Sri V.P. Singh, Advocate holding brief of Sri Manish Kumar Kashyap states that he shall be filing his Vakalatnama in the office by tomorrow. This second bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Sonu, seeking enlargement on bail during trial in connection with Case Crime No. 121 of 2021, under Sections 363, 366, 376 I.P.C. and Section 3/4 POCSO Act, registered at Police Station Kasganj, District Kasganj. Learned counsel for the applicant argued that the first information report has been lodged against the applicant and Deepak, under Sections 363, 366 I.P.C. by Smt. Sushila Devi the mother of the prosecutrix alleging therein that on 15.01.2021 at about 6 PM her daughter had gone to attend the call of nature but did not return back. She came to know that the accused persons have enticed away her daughter. Learned counsel for the applicant argued that the prosecutrix was recovered on 26.02.2021. Her statement was recorded under Section 161 Cr.P.C. wherein she has stated that she went with the applicant out of her own sweet-will. Subsequently in her statement recorded under Section 164 Cr.P.C. she although states of going with the applicant but states the she was taken forcibly and further she states that there was no pressure on her. It is argued that the prosecutrix has stated that she has solemnized marriage with the applicant, travelled to various places without any resistance. It is argued that the Chief Medical Officer, Kasganj has opined the age of the prosecutrix as 17 years and by giving variation of two years, she would be a major. It is argued that the prosecutrix was produced before the doctor but she reused her medical examination. The applicant has no criminal history as stated in para 26 and is in jail since 11.08.2021. Per contra, learned counsel for the first informant and learned counsel for the State have opposed the prayer for bail and argued that the applicant is named in the first information report and statements of the prosecutrix recorded under Section 161 Cr.P.C. and recorded under Section 164 Cr.P.C. It is argued that the prosecutrix is a minor girl. After having heard the learned counsel for the parties and perusing the record, it is evident that there are variations in the statements of the prosecutrix recorded under Section 161 Cr.P.C. and recorded under Section 164 Cr.P.C. As per the certificate of the Chief Medical Officer concerned, she was opined to be 17 years of age and by giving variation of two years she would be a major. Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail. Let the applicant- Sonu, 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:- i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever. ii) 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. (iii) 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. (iv) 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. (v) 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. (vi) 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. Order Date :- 11.4.2022 AS Rathore (Samit Gopal,J.) Digitally signed by ABHISHEK SINGH RATHOR Date: 2022.04.12 09:24:28 IST Reason: Location: High Court of Judicature at Allahabad