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

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32972 of 2023 Applicant :- Kishan Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Nanhe Lal Tripathi Counsel for Opposite Party :- G.A.,Beena Mishra Hon'ble Samit Gopal,J.

¶1List revised.

¶2Notice was issued to the first informant vide order dated

27.07.2023. As per the office report dated 22.08.2023, a report dated 17.08.2023 of C.J.M. concerned has been received stating therein that notice has been served on the first informant.

¶3The perusal of the said report shows that notice has been served on the first informant.

¶4No one appears on behalf of the first informant even when the matter has been taken up in the revised list.

¶5Heard Ms. Priya Chand, Advocate, holding brief of Sri Nanhe Lal Tripathi, learned counsel for the applicant, Ms. Beena Mishra, learned panel lawyer of the High Court Legal Services Committee and Sri Triveni Saran Rai, learned counsel for the State and perused the material on record.

¶6This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Kishan, seeking enlargement on bail during trial in connection with Case Crime No. 270 of 2023, under Sections 363, 366, 376 I.P.C. and 3/4 POCSO Act, registered at Police Station Kotwali Lalitpur, District Lalitpur.

¶7The FIR of the matter was lodged on 13.04.2023 against the applicant alleging therein that his daughter studying in class 12th aged about 17 years went missing on 31.03.2023 at about 11:00 am but she did not return till now. He came to know that Kishan the applicant has enticed her away.

¶8Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the victim in her statement under Section 161 Cr.P.C. has stated that she was in love with the applicant since last three years and since their parents were fixing her marriage with another person she married the applicant and they went Gwalior and stayed there in rented room. She has reiterated the same version in her statement under Section 164 Cr.P.C. as stated by in her statement under Section 161 Cr.P.C. It is further argued that as per the certificate of CMO concerned the victim has been opined to be 18 years of age and as such she is major. The victim has refused her medical examination when the she was produced before the doctor. She further argued that the applicant has no criminal history as stated in para 34 of the affidavit and is in jail since 16.04.2023.

¶9Per contra, learned counsel for the High Court Legal Services Committee and learned counsel for the State opposed the prayer for bail.

¶10After having heard learned counsels for the parties and perusing the records, it is evident that the victim in her statements under Section 161 Cr.P.C. and 164 Cr.P.C. has stated that she was in love with the applicant since last three years. She refused her medical examination when she was produced before the doctor. As per the certificate of CMO concerned, the victim has been opined to be 18 years of age.

¶11Looking to the facts and circumstances of this case, the nature of evidence 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.

¶12Let the applicant Kishan, 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.

¶13The 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.

¶14The bail application is allowed. Order Date :- 6.11.2023 M. ARIF (Samit Gopal, J.) High Court of Judicature at Allahabad