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

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39117 of 2023 Applicant :- Amit Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Rajesh Kumar Nishad Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.

¶1List revised.

¶2Heard Sri Rajesh Kumar Nishad, learned counsel for the applicant and Sri Bade Lal Bind, learned counsel for the State and perused the material on record.

¶3Vide order dated 06.09.2023, notice was issued to the first informant. As per the office report dated 12.10.2023, a report regarding service of notice has been received. The report dated 11.10.2023 of the Chief Judicial Magistrate, Banda is on record which states that notice has been served on the first informant.

¶4Despite service of notice, no one appears on behalf of the first informant.

¶5This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant-Amit, seeking enlargement on bail during trial in connection with Case Crime No. 209 of 2022, under Sections 363, 366, 376 (3) I.P.C. and 3/4 (2) POCSO Act, Police Station Bisanda, District Banda.

¶6The first information report of the present matter was lodged on 25.06.2022 by Munna against the applicant alleging therein that on 24.06.2022 at about 7 p.m. his daughter has gone to field to ease herself but she did not return back. She was searched a lot but could not be traced. One Vikas called him on phone and told him that Amit has taken his daughter away. She is aged about 16 years. While going she has taken Rs. 8000/-.

¶7Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the victim is a major girl. As per the certificate of the Chief Medical Officer, Banda, the victim has been opined to be about 21 years of age. It is argue that the victim in her statement recorded under Section 161 Cr.P.C. states that her parents were fixing her marriage somewhere else but she went away with the applicant and married him. It is argued that the victim in her statement recorded under Section 164 Cr.P.C. has stated of travelling with the applicant to many places and states that she married the applicant in court and she wants to live with him. It is argued that the present case is a case of consent. The applicant has no criminal history as stated in para 16 of the affidavit and is in jail since 09.04.2023.

¶8Per contra, learned counsel for the State opposed the prayer for bail.

¶9After having heard learned counsel for the parties and perusing the record, it is evident that the victim has been opined to be about 21 years of age by the Chief Medical Officer concerned and as such is a major. The victim travelled with the applicant to various places and then married him. The present case appears to be a case of consent.

¶10Looking 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.

¶11Let the applicant-Amit, 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.

¶12The 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.

¶13The bail application is allowed. Order Date :- 14.12.2023 AS Rathore (Samit Gopal,J.) High Court of Judicature at Allahabad