Vijaymal Harijan @ Vijaymal Das v. State of U.P. and Another

Court No. - 70 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 56680 of 2022 Applicant :- Vijaymal Harijan @ Vijaymal Das Opposite Party :- State of U.P. and Another Counsel for Applicant :- Prem Shankar Kushwaha,Archana Singh Counsel for Opposite Party :- G.A. Hon'ble Sameer Jain,J.

¶1Sri Suresh Bahadur Singh, learned AGA for the State apprised the Court that notice has been served upon the informant on 09.01.2023. Despite service of notice, none present on behalf of the informant.

¶2Heard Sri Prem Shankar Kushwaha, learned counsel for the applicant and Sri Suresh Bahadur Singh, learned AGA for the State.

¶3The instant bail application has been filed seeking release of the applicant on bail in Case Crime No. 0227 of 2019, under Sections 363, 366, 376 IPC and Section 3/4 POCSO Act, Police Station Gagaha, District Gorakhpur during pendency of the trial.

¶4FIR of the present case was lodged against applicant and according to the FIR applicant enticed away the daughter of the informant aged about 17 years.

¶5Learned counsel for the applicant submitted that entire allegation made against the applicant is totally false and baseless and although victim during investigation stated that applicant committed rape with her in her both the statements recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. but when she appeared before the trial court as PW-2 then she did not support the prosecution case and she has been declared hostile and her statement has been annexed along with supplementary affidavit dated 23.07.2023 filed in support of present bail application. He further submits that applicant is not having any criminal history and in the present matter he is in jail since

04.06.2022 i.e. for more than a year.

¶6Per contra, learned AGA opposed the prayer for bail but could not dispute the fact that during trial victim has been declared hostile and applicant is in jail since 04.06.2022 i.e. for more than a year.

¶7I have heard learned counsel for the parties and perused the record of the case.

¶8Considering the fact that victim of the case during trial did not support the prosecution and has been declared hostile and applicant is not having any criminal history and in the present matter he is in jail since 04.06.2022 i.e. for more than a year, in my view, applicant is entitled to be released on bail.

¶9Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.

¶10Let the applicant -Vijaymal Harijan @ Vijaymal Das be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

(i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted.

(ii) The applicant shall not directly or indirectly, make 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 any police officer or tamper with the evidence.

(iii) The applicant shall not indulge in any criminal and anti-social activity.

¶11In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant.

¶12It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial. Order Date :- 28.10.2023 AK Pandey High Court of Judicature at Allahabad