High Court
Case Details
Court No. - 71 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 50781 of 2021
Legal Reasoning
Applicant :- Arshad Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Rajeev Upadhyay Counsel for Opposite Party :- G.A.,Shiva Kant Srivastava Hon'ble Samit Gopal,J. Heard Sri Rajeev Upadhyay, learned counsel for the applicant, Sri Shiva Kant Srivastava, learned counsel for the first informant and Sri Sanjay Kumar Singh, learned A.G.A. 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- Arshad, seeking enlargement on bail during trial in connection with Case Crime No.179 of 2020, under Sections 363, 366, 376 I.P.C. & Section 3/4 POCSO Act, 2012 registered at Police Station Bilariganj, District Azamgarh. The First Information Report of the case was lodged under Sections 363 and 366 I.P.C. on 21.10.2020 by one Rajkumar, the father of the prosecutrix, alleging therein that on 14.10.2020 at about 4:00 a.m. his daughter aged about 17 years went to attend the nature's call, where the applicant came, lured her and enticed her away. As she did not return, she was searched a lot but was not traceable. Learned counsel for the applicant argued that subsequently the prosecutrix was recovered on 08.01.2021, which is after about three months of the date of her going with the applicant. It is argued that in her statement recorded under Section 161 Cr.P.C., she stated that the applicant took her away to Varanasi, where she stayed in a rented room and the applicant on a false pretext to marry her established forcible relationship with her, when she started becoming ill and told him to send back to her house, on which, he dropped her on a crossing where she waiting for a conveyance but the police recovered her. It is argued that even in her statement recorded under Section 164 Cr.P.C., the prosecutrix has stated as stated by her in statement recorded under Section 161 Cr.P.C.. It is also argued that as per the High School Certificate of the prosecutrix, she is aged about 17 years and three months but as per the certificate of the Chief Medical Officer, Azamgarh dated 15.01.2020, she was opined to be above 18 years of the age. It is argued that the prosecutrix is a major, she went with the applicant out of her own sweet will and stayed in a rented room for about three months without any resistance. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required. It has also been pointed out that the applicant is not having any criminal history as stated in para 15 of the affidavit and he is in jail since 08.03.2021 and there is no likelihood of early conclusion of trial and hence, the applicant may be released on bail during pendency of trial. Learned counsel for the first informant has opposed the bail prayer of the applicant and argued that after about a month of return, the prosecutrix died. It is argued that the prosecutrix was a minor at the time of incident. She has named the applicant, as the person taking her away and even making false promise to marry and exploit her. Learned A.G.A. for the State has also opposed the prayer for bail. After having heard the learned counsel for the parties and perusing the record, it is evident that as per certificate of the Chief Medical Officer, the prosecutrix is a major, she lived with the applicant for about three months in the rented room without any resistance. Looking to the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial 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- Arshad, 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 :- 16.2.2022 Zafar (Samit Gopal, J.) Digitally signed by MOHAMMAD ZAFAR ANSARI Date: 2022.02.18 16:09:26 IST Reason: Location: High Court of Judicature at Allahabad