High Court
Case Details
Court No. - 74 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 59126 of 2022 Applicant :- Kartik Gautam Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Shashi Kumar Verma Counsel for Opposite Party :- G.A.,Tanisha Jahangir Monir Hon'ble Saral Srivastava,J. Heard Sri Akash Kishan, Advocate bearing Advocate Roll No.A/A 0796/2021, holding brief of Sri Shashi Kumar Verma, learned counsel for the applicant, Ms. Sunita Chauhan, Advocate bearing Advocate Roll No.A/5040/2021, holding brief of Ms. T.J.Monir,
Legal Reasoning
learned counsel for the informant and Sri J.P.S. Chauhan, learned Brief Holder appearing for the State and perused the record. Sri J.P.S. Chauhan, learned Brief Holder on instructions, states that the service of notice upon the informant has been served. Hence, service of notice upon the informant is deemed sufficient. The present bail application has been moved on behalf of applicant in Case Crime No. 198 of 2022 (S.S.T. No.909 of 2022), under Sections 363, 366, 376 I.P.C. and 3/4 POCSO Act, Police Station Kalyanpur, District Kanpur Nagar with a prayer to enlarge him on bail. It has been contended by the learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case with some ulterior motive. It is contended that as per the F.I.R., victim is stated to be minor aged about 12 years, but there is no material on record to ascertain the correct age of the victim. It is further contended that the applicant is not named in the F.I.R. and name of the applicant has come into light for the first time in the statement of the prosecutrix recorded under Section 161 Cr.P.C. From perusal of the statement of the prosecutrix recorded under Section 161 Cr.P.C. she appears to be a consenting party. She voluntarily eloped with the applicant and went at several places, but she did not raise any alarm for her rescue. Though the victim in her statement recorded under Section 161 Cr.P.C. has levelled allegation that the applicant established physical relationship with her, but she in her statement recorded under Section 164 Cr.P.C. has denied the fact of establishing physical relationship by the applicant. Accordingly, it is submitted that there is contradiction in the statements of the victim recorded under Sections 161 & 164 Cr.P.C. Although, the victim has levelled allegation of rape against the applicant in her statement under Section 161 Cr.P.C., but the same is not corroborated by any medical evidence and surrounding circumstances totally belies the prosecution case. Her medical report does not show any mark of injury, violence or sexual assault. So far as the criminal history of the applicant is concerned, plausible explanation of which has been given in paragraph nos.18 & 19 of the affidavit filed in support of the bail application. The applicant is in jail since 30.03.2022. Per contra, learned counsel for the informant and learned Brief Holder have opposed the prayer for bail of the applicant by contending that the innocence of the applicant cannot be adjudged at pre-trial stage, therefore, applicant does not deserve any indulgence. In case, the applicant is released on bail he will misuse the bail. Considering the fact that the applicant was not named in the F.I.R. and since there is material contradiction in the statements of the prosecutrix recorded under Sections 161 & 164 Cr.P.C. and the victim in her statement under Section 164 Cr.P.C. has denied the fact of establishing physical relationship by the applicant and further considering the entire facts and circumstances of the case, submissions of learned counsel for the parties, nature of evidence and all attending facts and circumstances of the case, without expressing any opinion on merits of the case, the Court is of the view that the applicant has made out a case for bail. Let the applicant-Kartik Gautam involved in Case Crime No. 198 of 2022 (S.S.T. No.909 of 2022), under Sections 363, 366, 376 I.P.C. and 3/4 POCSO Act, Police Station Kalyanpur, District Kanpur Nagar be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions:- (i) The applicant shall not tamper with the evidence or threaten the witnesses. (ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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. (iii) 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 of the Indian Penal Code. (iv) 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. is issued and the 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 of the Indian Penal Code. (v) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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. It is further directed that the identity, status and residence proof of the sureties be verified by the authorities concerned before they are accepted. In case of breach of any of the above conditions, the trial court will be at liberty to cancel the bail. Accordingly, the bail application is allowed. Order Date :- 5.4.2023 NS Digitally signed by :- NITIN KUMAR High Court of Judicature at Allahabad