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

Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49500 of 2023 Applicant :- Ashish Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ajay Kumar Pathak,Suresh Chandra Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.

¶1Heard Mr. Ajay Kumar Pathak, 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-Ashish, seeking his enlargement on bail in Case Crime No. 133 of 2023, under Sections 363, 366, 376 IPC and Sections 5/6 POCSO Act, Police Station-Mirahchi, District-Etah during the pendency of trial.

¶4At 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 14.11.2023. 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.

¶5Record shows that in respect of an incident, which is alleged to have occurred on 13.06.2023, a prompt FIR dated 13.06.2023 was lodged by first informant-Mayaprakash (father of the prosecutrix) and was registered as Case Crime No. 133 of 2023, under Sections 363, 366 IPC, Police Station-Mirahchi, District-Etah. In the aforesaid FIR, applicant-Ashish has been nominated as solitary named accused.

¶6The gravamen of the allegations made in the FIR is to the effect that named accused Ashish i.e. applicant herein enticed away the minor daughter of first informant i.e. the prosecutrix namely X aged about 16 years.

¶7After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. The prosecutrix was recovered on 16.06.2023. Thereafter, her statement was recorded under Section 161 Cr.P.C. wherein she has not supported the FIR. To the contrary, the prosecutrix in her aforesaid statement has stated taht she herself joined the applicant and physical relations were established between the parties upon her consent. The prosecutrix has denied for her internal medical examination. However, in her statement under Section 164 Cr.P.C., the prosecutrix has departed from her previous statement under Sections 161 Cr.P.C. and has pleaded ignorance qua her acquaintance with the applicant. According to the learned counsel for applicant, the statement of the prosecutrix was recorded under Section 164 Cr.P.C. has to be given credence over the statement under Section 161 Cr.P.C. as per the scheme of Code i.e. Cr.P.C. On the above premise, the learned counsel for applicant submits that applicant is liable to be enlarged on bail.

¶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 17.06.2023. As such, he has undergone more than 5 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 on record 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.

¶9Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named as well as 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.

¶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 since the prosecutrix in her statement under Section 161 Cr.P.C. has not supported the FIR, there is no medical evidence to support the charge sheet, the prosecutrix in her statement under Section 164 Cr.P.C. has departed from her previous statement under Section 161 Cr.P.C., 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.

¶11Accordingly, the bail application is allowed.

¶12Let the applicant-Ashish, 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 :- 6.12.2023 Vinay High Court of Judicature at Allahabad