Virendra Kumar v. State of U.P. Thru. Prin. Secy. Home Lko and 4 Others

Court No. - 27 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12146 of 2022 Applicant :- Virendra Kumar Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko And 4 Others Counsel for Applicant :- Abdul Samad,Sonu Gupta,Syed Mohammad Abid Counsel for Opposite Party :- G.A. Hon'ble Brij Raj Singh,J.

¶1Heard Sri Sonu Gupta ,learned counsel for the applicant and Sri Ravish Chandra Mishra, learned A.G.A. for the State.

¶2The present bail application has been filed by the applicant with a prayer to enlarge him on bail in Case Crime No.0453 of 2022 under sections 363, 366, 376(3) IPC & 5/6 POCSO Act, Police Station Gurubux Ganj, District Rae Bareli.

3.It has been submitted by learned counsel for the applicant that though the mother of the prosecutrix (P.W.- 1) has supported the prosecution case in the examination-in-chief but in her cross-examination she has not supported the prosecution case.He has further submitted that the prosecutrix (P.W.-2) has been declared hostile by the court below. Learned counsel for the applicant has drawn attention of this Court towards the statement of the prosecutrix wherein she deposed before the court that she had gone to her Bua's house because she was beaten by her mother. She also deposed that after one week she came back to her parents house and the FIR was lodged by her mother. She further deposed that due to enmity, the applicant has been falsely implicated thereafter she has been declared hostile. He has further submitted that after looking to the statements of mother of the prosecutrix (P.W.-1) as well as the prosecutrix (P.W.-2) at the moment it cannot be inferred that the applicant is involved in the commission of crime.He also submitted that there is no possibility that the trial would be concluded in near future.The applicant has no previous criminal history and there is no possibility of fleeing away from the judicial process or tempering with the witnesses and in case, the applicant is enlarged on bail, he shall not misuse the liberty of bail. The applicant is in jail since

05.08.2022.

¶4On the other hand, learned A.G.A. has opposed the prayer for bail but could not dispute the fact that the prosecutrix (P.W.-2) has been declared hostile and mother of the proseuctirx (P.W.-1) has also not supported the prosecution case in her cross-examination.

¶5Without expressing any opinion on the merits of the case and after hearing learned counsel for the parties and looking into overall facts and circumstances of the case as well as the argument that the prosecutrix (P.W.-2) has been declared hostile and mother of the proseuctirx (P.W.- 1) has also not supported the prosecution case in her cross-examination, therefore, I am of the opinion that the applicant is entitled to be released on bail on the ground of parity.

¶6Let the applicant, namely,Virendra Kumar, be released on bail in the above case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of Court concerned with the following conditions :-

(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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 counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iii) 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. is issued and the 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 of the Indian Penal Code.

(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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. It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The Trial Court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything in this order. Order Date :- 30.10.2023 dk/ High Court of Judicature at Allahabad, Lucknow Bench