Wakar Ali v. State of U.P. and 3 Others

Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48211 of 2023 Applicant :- Wakar Ali Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Vinay Kumar Singh Singraur Counsel for Opposite Party :- G.A.,Anil Kumar Gupta Hon'ble Rajeev Misra,J.

¶1Heard Mr. Vinay Kumar Singh Singraur, the learned counsel for applicant, the learned A.G.A. for State and Mr. Anil Kumar Gupta, the learned counsel representing first informant-opposite party 2.

¶2Perused the record.

¶3This application for bail has been filed by applicant-Wakar Ali, seeking his enlargement on bail in Case Crime No. 200 of 2023, under Sections 376, 506 IPC and Section 4(2) POCSO Act, Police Station-Asmauli, District-Sambhal during the pendency of trial.

¶4Record shows that in respect of an incident, which is alleged to have occurred on 14.07.2023, a delayed FIR dated 15.07.2023 was lodged by first informant-Sageer (father of the prosecutrix) and was registered as Case Crime No. 200 of 2023, under Sections 376, 506 IPC and Section 4(2) POCSO Act, Police Station-Asmauli, District-Sambhal. In the aforesaid FIR, applicant-Wakar Ali has been nominated as solitary named accused.

¶5At the very outset, the learned counsel for applicant submits that after completion of statutory investigation of concerned case crime number, applicant was charge sheeted under Sections 376, 506 IPC and Section 4(2) POCSO Act vide charge sheet dated 20.07.2023. Subsequently, the trial commenced and was registered as Special Sessions Trial No. 78 of 2023 (State Vs. Wakar Ali). In the aforesaid trial, the first informant-Sageer has deposed before court below as PW-1 whereas the prosecutrix has deposed as PW-2. Both the witnesses i.e. PW-1 and PW-2 have not supported the FIR. On the above premise, the learned counsel for applicant contends that since the first informant and the prosecutrix in their depositions before court below have not supported the FIR, therefore, no useful purpose shall be served in prolonging the custodial arrest of applicant during the pendency of trial. Moreover, since the statements of the first informant and the prosecutrix have already been recorded, therefore, it cannot be said that in case, applicant is released on bail, he shall either terrorize the witnesses or shall hamper the course of trial.

¶6Even 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 15.07.2023. As such, he has undergone more than 4 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.

¶7Per 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. According to the learned A.G.A. simply on the ground that the statements of first informant PW-1 and the prosecutrix PW-2 have been recorded but they have not supported the FIR, it cannot be conclusively concluded that applicant is innocent. As such, no sympathy be shown by this Court in favour of applicant. However, the learned counsel representing first informant-opposite party 2 does not oppose the prayer for bail.

¶8Having heard, the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon perusal of record, evidence, nature and gravity of offence, accusations made, complicity of accused and coupled with the fact that the first informant and the prosecutrix have deposed before court below as PW-1 and PW-2 but they have not supported the FIR, therefore, no useful purpose shall be served in prolonging the custodial arrest of applicant, furthermore, the statements of the first informant PW-1 and the prosecurix PW-2 have been recorded, therefore, it cannot be said that in case, the applicant is enlarged on bail, he shall either terrorize the witnesses or shall hamper the course of trial, 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.

¶9Accordingly, the bail application is allowed.

¶10Let the applicant-Wakar Ali, 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.

¶11However, 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 :- 14.12.2023 Vinay High Court of Judicature at Allahabad