Rohit v. State of U.P. and others) He further submitted that since the role of the
Case Details
Court No. - 42 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43146 of 2022 Applicant :- Ajay @ Randhir Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Aditya Kumar Tiwari,Tripurari Pal Counsel for Opposite Party :- G.A. Hon'ble Vivek Kumar Birla,J.
Legal Reasoning
Heard learned counsel for the applicant and learned A. G. A. for the State and perused the record. Present application under Section 439 Cr.P.C. has been filed by the applicants who are involved in Case Crime No. 401 of 2021, under Sections 376D, 354, 455 I.P.C. and Sections 5/6 and 9/10 of POCSO Act, P.S. Pipraich, District Gorakhpur. Learned counsel for the applicant submitted that the other co- accused Rohit has already been enlarged on bail by this Court vide order dated 8.9.2022 passed in Criminal Misc. Bail Application No. 34145 of 2022 (Rohit vs. State of U.P. and others) He further submitted that since the role of the applicant is identical to that of the co-accused who has already been enlarged on bail, the applicant is also entitled to be enlarged on bail on the ground of parity. Learned counsel for the applicant further submits that the applicant is in jail since 16.3.2022. The aforesaid order dated 8.9.2022 passed in the aforesaid bail application is quoted as under:- "Heard learned counsel for the applicant, learned A.G.A for the State and perused the record. Learned counsel for the applicant has submitted that the applicant is innocent and has falsely been implicated in this case along with other co- accused persons. Further submitted that the F.I.R was lodged by the father of the victim after delay of 13 days without any explanation thereto with the allegation that the molestation of the victim was done by his applicant and other co-accused person on 10.11.2021 and 28.11.2021 but no allegation of rape has been made against this applicant in the F.I.R, in the statement of victim recorded under section 161 Cr.P.C. but during statement recorded under section 164 Cr.P.C she made improvement in her statement and made such allegation against this applicant also which was made under pressure of her parents. There is nothing on record to support the allegation of the victim regarding rape with her by this applicant. He is languishing in jail since 16.3.2022 as having no any criminal antecedent and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in trial. On the other hand, learned AGA opposed the prayer for bail. Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, delay in lodging the F.I.R and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed. Let the applicant-Rohit, involved in Case Crime No.401 of 2022, under Sections 376-D, 354, 455 I.P.C and 5/6, 9, 10 POCSO Act, P.S. Pipraich, District Gorakhpur be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. 1. The applicant will not tamper with the evidence during the trial. 2. The applicant will not pressurize/ intimidate the prosecution witness. 3. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted. 4. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected of the commission of which he is suspected. 5. 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. In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court." The prayer for bail has vehemently been opposed by learned A. G. A. However, he does not dispute the fact that the similarly placed co-accused has been granted bail by this Court. Considering the submissions made by learned counsel for the applicant as well as learned A. G. A. and the fact that identically placed co-accused Rohit has already been enlarged on bail by this Court, without expressing any opinion on the merits of the case, it is deemed fit to enlarge the applicant on bail. Let the applicant Ajay @ Randhir, who is involved in aforementioned Case Crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified. (i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT SHE 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 HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HER UNDER SECTION 229-A IPC. (iii) IN CASE, THE APPLICANT MISUSE THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAIL TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC. (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 HER 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. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on her 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 :- 1.11.2022 Lalit Shukla Digitally signed by LALIT KUMAR SHUKLA Date: 2022.11.01 16:50:47 IST Reason: Location: High Court of Judicature at Allahabad