Devendra v. State of U.P

Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45412 of 2023 Applicant :- Devendra Opposite Party :- State of U.P. Counsel for Applicant :- Pavan Kumar Mishra Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.

¶1Heard Mr. Pavan Kumar Mishra, the learned counsel for applicant and the learned A.G.A. for State.

¶2Perused the record.

¶3This application for bail has been filed by applicant-Devendra, seeking his enlargement on bail in Case Crime No. 321 of 2012, under Sections 363, 366, 376(2G), 109 IPC, Police Station-Kotwali, District-Muzaffarnagar during the pendency of trial.

¶4Record shows that in respect of an incident, which is alleged to have occurred on 18.03.2012, a delayed FIR dated 01.04.2012 was lodged by first informant-Satpal (father of the prosecutrix) and was registered as Case Crime No. 321 of 2012, under Sections 363, 366 IPC, Police Station-Kotwali, District-Muzaffarnagar. In the aforesaid FIR, an unknown person has been arraigned as solitary accused.

¶5After completion of statutory investigation of aforementioned case crime number, charge sheet was submitted on 10.07.2012 whereby applicant has been charge sheeted under Sections 363, 366, 376(2G), 109 IPC. However, prior to the submission of charge sheet, the applicant was already enlarged on bail on

13.01.2023.

¶6After submission of aforementioned charge sheet, cognizance was taken upon same by court concerned. Thereafter, the case was committed. Accordingly Sessions Case No. 21 of 2014 (State Vs. Dharmpal and Others), under Sections 363, 366, 376(G) IPC, Police Station-Kotwali, District-Muzaffarnagar came to be registered. The statement of the prosecutix was recorded on

14.03.2019 inasmuch as, the prosecutrix appeared before court below as PW-2. However, the prosecutrix in her statement has not supported the FIR. Consequently, she has been declared hostile.

¶7Unfortunately, the applicant abandoned the proceedings of aforementioned trial from 13.02.2020. Consequently, non bailable warrant was issued against applicant on 22.02.2021. Ultimately, the applicant was arrested on 04.09.2023.

¶8Learned counsel for applicant submits that applicant was initially enlarged on bail vide order dated 13.01.2023. The applicant had been co-operating with the trial and the statement of the prosecutrix was also recorded wherein she has not supported the FIR and has been declared hostile. However, the applicant went outside to earn his livelihood and it is on account of above that he could not not participate in the proceedings of the trial. It is thus urged that there is no deliberate omission on the part applicant in not co-operating with the trial. He, however, submits that since the statement of the prosecutrix itself has been recorded wherein she has not supported the FIR and has been declared hostile, no useful purpose shall be served in prolonging the custodial arrest of applicant.

¶9Even 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 04.09.2023. As such, he has undergone more than 2 and 1/2 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 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.

¶10Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a charge sheeted accused, therefore, he does not deserve any indulgence by this Court. 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.

¶11Having 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 charge sheet has submitted against applicant on 10.07.2022, applicant was enlarged on bail vide order dated 13.01.2023, the applicant regularly and continuously co-operated with the proceedings of trial, in the interregnum, the statement of the prosecutrix was recorded before court below as PW-2 wherein she has not supported the FIR and has been declared hostile, the applicant abandoned the proceedings of trial from 13.02.2020 but was ultimately arrested on 04.09.2023, coupled with the fact that since the statement of the prosecutrix has itself been recorded wherein she has not supported the FIR, though applicant is an absconder inasmuch as he jumbed the bail yet considering the aforesaid facts and circumstances of the case and 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, 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.

¶12Accordingly, the bail application is allowed.

¶13Let the applicant-Devendra, 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.

¶14However, 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 :- 1.12.2023 Vinay High Court of Judicature at Allahabad