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

Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48266 of 2023 Applicant :- Pradeep Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Kamlesh Kumar Tiwari Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. Heard Kamlesh Kumar Tiwari, the learned counsel for applicant and the learned A.G.A. for State. Supplementary affidavit filed by learned counsel for applicant in Court today is taken on record. Perused the record. This application for bail has been filed by applicant Pradeep seeking his enlargement on bail in Case Crime No. 494 of 2023, under Sections 363, 366, 376 IPC and 5/6 POCSO Act, Police Station-Gangaha, District Gorakhpur, during pendency of trial. At the very outset, learned A.G.A. submits that notice of present application for bail has been served upon opposite party-2 on

17.11.2023. However, inspite of service of notice, no one has put in appearance on behalf of first informant /opposite party-2 to oppose this application. Record shows that in respect of an incident which is alleged to have occurred on 6.8.2023 a belated F.I.R. dated 8.8.2023 was lodged by first informant Savitri Devi and was registered as Case Crime No. 494 of 2023, under Sections 363, 366, 376 IPC and 5/6 POCSO Act, Police Station-Gangaha, District Gorakhpur. In the aforesaid F.I.R. one Dharmendra has been nominated as solitary named accused. The gravamen of the allegations made in the F.i.R. is to the effect that daughter of first informant i.e. prosecutrix aged about 15 years went missing from 9:00 pm on 6.8.2023. The F.I.R. further records that the first informant has every apprehension that her daughter has been enticed away by named accused, Dharmendra. After aforementioned F.I.R. 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 11.12.2023. Thereafter the statement of the prosecutrix was recorded under section 161/164, Cr.P.C., wherein she has admitted that she has solemnized marriage with present applicant. During course of investigation, Investigating officer examined the principal of the institution where the prosecutrix had studied up to Class-IX. Accordingly, certificate was issued by Principal. As per the said document date of birth of the prosecutrix is 15.5.2008. The F.I.R. was lodged on 8.8.2023. As such, the prosecutrix was aged about 15 years and two months and two days at the time of occurrence. On the basis of above and other material collected by Investigating Officer, during course of investigation he came to the conclusion that complicity of applicant is established in the crime in question. He, accordingly submitted the charge sheet dated 6.11.2023, whereby applicant has 363, 366, 376 IPC and 5/6 POCSO Act. Learned counsel for applicant contends that though the applicant is a named and charge sheeted accused yet he is liable to to be enlarged on bail. Prosecutrix in her statements under Section 161/164 Cr.P.C has clearly and categorically stated that she has solemnized marriage with the applicant. As per medical opinion, the prosecutrix is in family way. The age of the fetus was determined as six weeks and four days. It is then submitted by learned counsel for applicant that affidavit in support of present application for bail has been sworn by prosecutrix herself who is residing in the house of applicant. On the above conspectus, it is urged that applicant is liable to be enlarged on bail. Even 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 22.9.2023. As such, he has undergone more than two months of incarceration. Police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized. However, up to this stage, no such circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. It is thus urged 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. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant, with reference to the record at this stage. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant, accusation made coupled with the fact that prosecutrix in her statement under section 161/164 Cr.P.C. has categorically stated that she has solemnized marriage with the applicant, on account of above, the parties came into cohabitation and started living as husband and wife, the prosecutrix has now come in family way, as per medical opinion, the age of the fetus is six weeks and two days, the affidavit in support of the present application for bail has been sworn by the prosecutrix herself, the prosecutrix is living in the house of applicant as legally wedded wife, the period of incarceration undergone, the clean antecedents of applicants, police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicants, as such, the entire evidence sought to be relied upon by prosecution against applicants stands crystalized, yet inspite of above, learned A.G.A. could not point out any such circumstance from record necessitating the custodial arrest of applicants during pendency of trial, therefore, irrespective of the objection raised by the learned A.G.A. in opposition to the present application for bail, but without making any comment on the merits of the case, applicant has made out a case for bail. Accordingly, the bail application is Allowed. Let the applicant Pradeep, 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 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. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her 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 :- 14.12.2023 Arshad High Court of Judicature at Allahabad