Brijesh v. State of U.P

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 58172 of 2022 Applicant :- Brijesh Opposite Party :- State of U.P. Counsel for Applicant :- Pawankumar Dubey Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.

¶1List revised.

¶2Heard Sri Pawankumar Dubey and Sri Suresh Singh, learned counsels for the applicant and Sri Ajay Singh, learned A.G.A.-I for the State and perused the material on record.

¶3This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant-Brijesh, seeking enlargement on bail during trial in connection with Case Crime No. 305 of 2022, under Sections 363, 366, 376 I.P.C., Police Station Paraur, District Shahjahanpur.

¶4The first information report of the present matter was lodged on 28.09.2022 by Smt. Niyajmeen Begum under Sections 363, 366 I.P.C. against unknown person alleging therein that her nand has been enticed away by some unknown person. On 27.09.2022 at about 11 p.m. while going she has taken ornaments and Rs. 5000/-.

¶5Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the applicant was subsequently named in the statement of the victim recorded under Section 161 Cr.P.C. and under Section 164 Cr.P.C. and then he has been made as an accused in the matter. It is argued that the victim is an illiterate girl and as per the supplementary medical report she has been opined to be about 18 years of age and as such she is a major. It is argued while placing supplementary affidavit dated 05.10.2023 that the victim was examined as P.W.-1 and the first informant was examined as P.W.-2 before the trial court, both the said witnesses have not supported the prosecution case and have been declared hostile. The said statements have been placed before the Court which are annexed as Annexure-S.A.-1 to the said supplementary affidavit. The applicant has no criminal history as stated in para 22 of the affidavit and is in jail since 18.10.2022.

¶6Per contra, learned counsel for the State opposed the prayer for bail.

¶7After having heard learned counsel for the parties and perusing the record, it is evident that the victim has been opined to be about 18 years of age in the supplementary medico legal report. She is an illiterate and there is no other document to show her age. In the trial the victim and the first informant have been examined as P.W.1 and P.W.-2 who have not supported the prosecution case and have been declared hostile.

¶8Looking 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.

¶9Let the applicant-Brijesh, 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.

¶10The 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.

¶11The bail application is allowed. Order Date :- 7.12.2023/AS Rathore (Samit Gopal,J.) High Court of Judicature at Allahabad