Shailendra Kumar Yadav v. The State of U.P. Thru. Prin. Secy. Home, Lko. and Others

Court No. - 27 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11332 of 2023 Applicant :- Shailendra Kumar Yadav Opposite Party :- The State Of U.P. Thru. Prin. Secy. Home, Lko. And Others Counsel for Applicant :- Dhirendra Pratap Singh Counsel for Opposite Party :- G.A. Hon'ble Brij Raj Singh,J.

¶1Counter affidavit and Rejoinder affidavit are taken on record.

¶2Heard Sri Dhirendra Pratap Singh, learned counsel for the applicant and Sri Ran Vijay Singh, learned A.G.A. for the State.

¶3The present bail application has been filed by the applicant with a prayer to enlarge him on bail in Case Crime No.340 of 2022 under sections 376D, 504, 506 IPC and Section 5/6 POCSO Act, Police Station Jagatpur District Raebareli.

¶4It has been submitted by learned counsel for the applicant that FIR was lodged by the prosecutrix herself under sections 354, 504, 506 IPC and 7/8 POCSO Act and there is no allegation of rape rather the allegation of molestation is levelled in the FIR. However, she changed her version in the statement recorded under section 164 Cr.P.C. and levelled allegation of rape against the applicant.Learned counsel for the applicant has submitted that prosecutrix (P.W.-1) has been examined before the trial court and has not supported the prosecution case and on 31.10.2023 she deposed before the court that she had gone on the call of nature at about 12.00 day time where two persons met and molested her but she has not named the persons. Again in cross-examination dated

03.11.2023, she deposed before the court that on the pressure created by the police, she had given statement under section 164 Cr.P.C. that rape was committed upon her by the applicant.The prosecutrix was again cross-examined on 17.11.2023 and she deposed that whatever she had stated before the police, the same was under duress. Learned counsel for the applicant has submitted that the prosecutrix has not supported that prosecution case and after looking into the statement of proseuctirix at the moment it cannot be inferred that the applicant was involved in the commission of crime. 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 16.03.2023.

¶5On the other hand, learned A.G.A. though opposed the prayer for bail but could not dispute the fact that the prosecutrix has not supported the prosecution case before the trial court in her cross-examination.

¶6Without 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.-1) has not supported the prosecution case in the trial and she has deposed before the court that the applicant did not commit rape against her and the argument that earlier FIR was lodged for molestation however, version was improved by the prosecutrix in the statement recorded under section 164 CR.P.C., therefore, I am of the opinion that the applicant is entitled to be released on bail .

¶7Let the applicant, namely, Shailendra Kumar Yadav, 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 :- 18.11.2023 dk/ High Court of Judicature at Allahabad, Lucknow Bench