Aryan v. State of U.P. and 3 Others

Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46217 of 2023 Applicant :- Aryan Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Shyam Shankar Shukla,Sadashiv Tripathi Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.

¶1Heard Mr. Shyam Shankar Shukla, the learned counsel for applicant and the learned A.G.A. for State.

¶2Perused the record.

¶3At the very outset, the learned A.G.A. contends that notice of present application for bail has been served upon first informant-opposite party 4 on 27.09.2023. However, in spite of service of notice, no one has put in appearance on behalf of first informant-opposite party 4 to oppose this application for bail.

¶4This application for bail has been filed by applicant-Aryan, seeking his enlargement on bail in Case Crime No. 246 of 2023, under Sections 323, 504, 506, 328, 342, 376, 120-B, 354, 509 IPC, Sections 3/4 POCSO Act and Section 66E I.T. Act, Police Station-Majhola, District-Moradabad during the pendency of trial.

¶5Record shows that an FIR dated 08.04.2023 was lodged by first informant-Anil Kumar (father of the prosecutrix) and was registered as Case Crime No. 246 of 2023, under Sections 323, 504, 506, 328, 342, 376, 120-B, 354, 509 IPC, Sections 3/4 POCSO Act and Section 66E I.T. Act, Police Station-Majhola, District-Moradabad. In the aforesaid FIR, 5 persons namely - (1) Aryan (applicant herein), (2) Nandini Gupta, (3) Mother of Nandini, (4) Father of Nandini and (5) Brother of Nandini have been nominated as named accused.

¶6At the very outset, the learned counsel for applicant submits though applicant is a named/charge sheeted accused inasmuch as, the applicant alone has been charge sheeted vide charge sheet dated 18.05.2023 yet the applicant is liable to be enlarged on bail.

¶7Attention of Court was invited to the statement of the first informant and the prosecutrix who have deposed before court below as PW-1 and PW-2 respectively. Same has been brought on record by means of supplementary affidavit. With reference to above, the learned counsel for applicant submits that neither the first informant nor the prosecutrix have supported the FIR in their deposition before court below. On the above premise, he, therefore, contends that no useful purpose shall be served in prolonging the custodial arrest of applicant during the pendency of trial.

¶8Even otherwise, 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 14.04.2023. As such, he has undergone more than 6 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. On the above premise, he submits that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

¶9Per contra, the learned A.G.A. has opposed the prayer for bail. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

¶10Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made, complicity of accused and coupled with the fact that the first informant and the prosecutrix have not supported the FIR in their deposition before court below, therefore, no useful purpose shall be served in prolonging the custodial arrest of applicant during the pendency of trial, the clean antecedents of applicant, the period of incarceration undergone, the police report in terms of Section 173(2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet in spite of above, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, since the statement of the first informant and the prosecutrix have been recorded, therefore, there cannot be any chance of tampering of evidence or terrorizing the witnesses, therefore, irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail, but without making any comments on the merits of the case, applicant has made out a case for bail.

¶11Accordingly, the bail application is allowed.

¶12Let the applicant-Aryan, be released on bail in the aforesaid case crime number on his 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, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/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 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.

¶13However, 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 :- 1.11.2023 Vinay High Court of Judicature at Allahabad