Sarjeet Bhartiya v. State of U.P. and 3 Others

Court No. - 68 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48011 of 2023 Applicant :- Sarjeet Bhartiya Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Brij Bhushan Upadhyay Counsel for Opposite Party :- G.A.,Manisha Chaturvedi Hon'ble Dr. Gautam Chowdhary,J.

¶1Memo of appearance filed by Ms. Manisha Chaturvedi, Advocate, on behalf of High Court Legal Service Committee-opposite party No. 3 is taken on record.

¶2Heard learned counsel for the applicant, learned A.G.A for the State as well as learned counsel for the opposite party No. 3 and perused the record.

¶3Learned counsel for the applicant submits that initially F.I.R. dated 05.07.2023 was lodged by the complainant under Sections 363, 366 I.P.C. against the applicant with the allegation that on

04.07.2023 at about 8:40 a.m. he dropped his two daughters in the college and when he reached again to the college to bring them back to his house then his younger daughter came out from the school but his elder daughter aged about 15 years did not come out, thereafter, he searched enough but no information could be obtained by him and when he talked with his younger daughter then she told that her elder sister was used to talk with the present applicant and he made suspicion that his elder minor daughter has been enticed away by the applicant. Learned counsel for the applicant further submits that in his statement recorded under Section 161 Cr.P.C. the informant repeated almost same version of the F.I.R. Learned counsel for the applicant further submits that the victim in her statement recorded under Section 161 Cr.P.C. has stated that she used to talk with the applicant for the last one year, they both like each other, she also told to her mother for solemnizing marriage with the applicant but when her mother did not accept her desire she told the applicant to took her to anywhere, thereafter on the date of incident when the school went off, on her own will she went with the applicant to Soraon and reached to house of Bua of the applicant and in this statement she had not made any allegation of rape against the applicant. Learned counsel for the applicant further submits that the victim in her statement recorded under Section 164 Cr.P.C. has almost repeated the same version of her earlier statement recorded under Section 161 Cr.P.C. and has also not made any allegation of rape against the applicant. Learned counsel for the applicant further submits that as per school record age of the victim is about 15 years. Learned counsel for the applicant further submits that in the medical examination of the victim the doctor has found no sign of use of force on examination of her private parts and sexual violence cannot be ruled out however final opinion is reserved pending availability of FSL report and till date no FSL report is on the record, which fact has also been confirmed by the learned A.G.A. for the State. Learned counsel for the applicant further submits that victim in her both statements recorded under Sections 161 & 164 Cr.P.C. has not made any allegation of rape against the applicant and stated that she went with the applicant on her own wishes, thus, it appears that victim is a consenting party. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been mentioned. It has also been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. He next submits that applicant is languishing in jail since 06.07.2023, having no criminal history.

¶4Per contra, learned A.G.A. as well as learned counsel for the opposite party No. 3 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, he does not deserve any indulgence.

¶5After perusing the record in the light of the submissions made at the bar and after taking an overall view of all 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, without expressing any opinion on merits of the case, this Court is of the view, that the applicant may be enlarged on bail.

¶6Let applicant-Sarjeet Bhartiya, involved in Case Crime No. 136 of 2023, under Section 363, 366, 376 I.P.C. and Section 3/4 of Protection of Children From Sexual Offences Act, Police Station Khuldabad, District Prayagraj, be enlarged on bail on furnishing a personal bond and two heavy local sureties each of the like amount to the satisfaction of the court concerned subject to the following conditions:-

(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.

¶7The 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 in accordance with law.

¶8The bail application is allowed. Order Date :- 21.11.2023 Mustaqeem. High Court of Judicature at Allahabad