High Court
Case Details
Court No. - 42 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 51586 of 2022 Applicant :- Ankul Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Adil Khan Counsel for Opposite Party :- G.A. Hon'ble Vivek Kumar Birla,J.
Legal Reasoning
Heard learned counsel for the applicant, learned AGA for the State and perused the record. The present bail application filed on behalf of the applicant Ankul seeking his bail in connection with Case Crime No. 32 of 2022, under Sections 363, 366, 376 IPC and 3/4 POCSO Act, Police Station Alchora Kamboh, District Sambhal. At the very outset, learned counsel for the applicant is claiming parity on the ground that the accused Rohit has already been granted bail by this Court vide order dated 18.11.2022 passed in Criminal Misc. Bail Application No. 51812 of 2022 (Rohit vs. State of UP) and therefore, the applicant herein is entitled to be enlarged on bail on the ground of parity. It is however submitted that the applicant is innocent with no previous criminal history and is in jail since 5.4.2022 and in case he is enlarged on bail, he will not misuse the liberty of bail. Additionally, it is submitted that the informant who has appeared as PW-1 and the victim Nisha who has appeared as PW-2 have not supported the prosecution version and the other girl Neha has also not supported the prosecution case. The order dated 18.11.2022 passed in Criminal Misc. Bail Application No. 51812 of 2022 (Rohit vs. State of UP) is quoted as under: "Heard Mr. Adil Khan, the learned counsel for applicant and the learned A.G.A. for State. This application for bail has been filed by applicant Rohit seeking his enlargement on bail in Case Crime No. 374 of 2022, under sections 363, 366, 376 IPC, and 3/4 POCSO Act, Police Station- Alchora, District Sambhal during the pendency of trial i.e. S.S.T. No. 50 of 2022 (State Vs. Rohit) under sections 363, 366,, 376 IPC, Police Station- Alchora, District Sambhal, in the Court of Special Judge (POCSO Act), Sambhal at Chandausi. Perused the record. After lodging of aforesaid F.I.R., Investigating Officer upon completion of investigation, submitted the charge-sheet. Upon submission of charge-sheet, Cognizance was taken and thereafter, the trial procedure commenced. Applicant is a named and charge sheeted accused. During course of trial, First informant Ramveer (father of prosecturix) have been examined as P.W.1, the prosecutrix Neha has been examined as P.W.2 before the Court below. Both the witnesses have not supported the F.I.R. On the aforesaid premise, learned counsel for applicant submits that applicant is liable to be enlarged on bail by this Court. It is then contended that applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 5.4.2022. As such, he has undergone more than 7 months of incarceration. In case 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 this application. However, he could not dislodge the factual/legal submissions urged by learned counsel for applicant, at this stage. Having heard the learned counsel for applicant the learned A.G.A. for State upon perusal of material brought on record as well as the complicity of applicant, accusation made coupled with the fact that first informant and the prosecutrix who have deposed before Court below as P.W.1 and P.W.2 have not supported the F.I.R., the Criminality alleged against applicant is prima facie is not established, but without making any comment on the merits of the case applicant has made out a case for bail. Accordingly, the bail application is allowed. Let the applicant Rohit, 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 SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC. (iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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, INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC. THE TRIAL COURT SHALL THEN, (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 THE HIM/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. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/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." Learned AGA has opposed the prayer for grant of bail to the applicant. Keeping in view the nature of the offence, evidence on record regarding complicity of the accused, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018)3 SCC 22 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 Ankul, 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 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 IPC. (iii) IN CASE, THE APPLICANT MISUSE 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 FAIL 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 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 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. 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 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 :- 15.12.2022 Abhishek Digitally signed by ABHISHEK AGRAHARI Date: 2022.12.15 16:30:14 IST Reason: Location: High Court of Judicature at Allahabad