Akash Sonker v. State of U.P. Thru. Secy. Home, Lko. and Others

Court No. - 27 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4696 of 2023 Applicant :- Akash Sonker Opposite Party :- State Of U.P. Thru. Secy. Home, Lko. And Others Counsel for Applicant :- Amitabh Tripathi Counsel for Opposite Party :- G.A.,Jaikaran Hon'ble Brij Raj Singh,J.

¶1Supplementary afÏdavit filed by learned counsel for applicant is taken on record.

¶2Heard Shri Amitabh Tripathi, learned counsel for the accused-applicant, Shri Jaikaran, learned counsel for complainant as well as Shri Awadhesh Narayan Tripathi, learned A.G.A. for the State and perused the record.

¶3This bail application has been filed seeking release of the accused/applicant Akash Sonker on bail, who is involved in Case Crime No. 421 of 2022 under Sections 376(3), 323, 506 I.P.C & Section 5/6 Protection of Children from Sexual Offences, Act, 2012, Police Station Mill Area, District Raebareli.

¶4This Court had earlier granted interim bail to the applicant vide order dated 10.05.2023, which is as follows:- " Supplementary affidavit has been filed by learned counsel for the applicant. The same is taken on record. Heard learned counsel for the applicant and learned A.G.A. for the State. The present bail application has been filed by the applicant with a prayer to enlarge him on bail in FIR/Case Crime No. 421 of 2022 (S.T. No. 07 of 2023) under Sections 376(3), 323, 506 IPC and 5/6 POCSO Act, Police Station Mill Area, District Raebareli. It has been submitted by learned counsel for the applicant that as per ossification report, the age of the prosecutrix is 18 years and she has become major. It has been submitted that the statement of the prosecutrix recorded under Section 164 Cr.P.C. itself indicates that it is a case of consent. Learned counsel for the applicant has submitted that if the prosecutrix is ready to live with the applicant, he is ready to marry with the prosecutrix. He has submitted that two months interim bail may be granted to the applicant for settlement of marriage between the applicant and the prosecutrix. Without expressing any opinion on the merits of the case and after hearing learned counsel for the parties and looking to the fact that the prosecutrix is consenting party and now she has become major, in my opinion, the applicant is entitled to be released on interim bail for two months. It is expected that the applicant will marry with the prosecutrix in the meantime and file affidavit of marriage on the next date of listing."

¶5In compliance of the order dated 10.05.2023, the prosecutrix and the applicant have solemnised marriage and are happily living together as husband and wife. Learned counsel for applicant has annexed the marriage registration certificate along with the supplementary afÏdavit filed today before the Court.

¶6Both learned A.G.A for the State as well as learned counsel for complainant have opposed the prayer of bail of the applicant, but have fairly conceded that the applicant and prosecutrix have performed marriage and are living together as husband and wife.

¶7Considering the facts and circumstances of the case, perusing the record, also considering the nature of allegations, arguments advanced by the learned counsel for the parties, the argument that it is a case of consent, the argument that the applicant has no previous criminal history, the argument that applicant has solemnised marriage with the prosecutrix and they both are living together as husband and wife, I find it to be a fit case for grant of regular bail.

¶8Accordingly, the bail application is allowed.

¶9Let the applicant Akash Sonker be released on regular 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 sufÏcient cause, the trial court may proceed against her 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 sufÏcient 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.

¶10It 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 :- 28.11.2023 DiVYa/Rajneesh High Court of Judicature at Allahabad, Lucknow Bench