Shivbhawan Vishwakarma v. State of U.P. Thru. Prin. Secy. Home, Civil Sectt. Lko. and Others

Court No. - 27 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12034 of 2023 Applicant :- Shivbhawan Vishwakarma Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Civil Sectt. Lko. And Others Counsel for Applicant :- Satya Prakash Mishra Counsel for Opposite Party :- G.A.,Adarsh Srivastava Hon'ble Brij Raj Singh,J.

¶1Heard Shri Satya Prakash Mishra learned counsel for the applicant, Shri Vishwas Saraswat, learned AGA for the State and perused the record. Nobody has appeared for the complainant though the notice has been served sufÏciently.

¶2The present bail application has been filed by the applicant with a prayer to enlarge him on bail in Case Crime No.150 of 2023, under Sections 363, 366, 376 I.P.C.,and Section 5/6 POCSO Act, 2012 and Section 3 (2)

(v) SC/ST Act, Police Station Amethi, District Amethi.

¶3Learned counsel for the applicant has invited attention of this court towards the statement of prosecutrix under Section 164 Cr.P.C. in which she has deposed that she has passed Class VIII and she was annoyed by her mother and brother and left her house and went to Sultanpur and stayed at railway station, thereafter she was caught by the police. She further deposed that applicant did not commit rape upon her. Learned counsel submitted that medical report also indicates that the prosecutrix has stated that Raj Kumar established physical relations and she has not stated anything adverse against the applicant before the doctor. It has been submitted that as per the medical report the age of the prosecurix is 18 years and she is major however as per school certificate, she is minor that is why POCSO Act has been imposed. The applicant has no criminal antecedents to his credit and is in jail since

26.06.2023.

¶4Learned AGA opposed the prayer for bail and submitted that on the basis of statement under Section 164 Cr.P.C. it has come into light that it was applicant who had established physical relations, therefore, bail is liable to be rejected.

¶5Without expressing any opinion on the merits of the case, after hearing learned counsel for the parties and considering the argument that prosecutrix has not given statement against applicant regarding rape before the doctor, argument that physical relation was established by Raj Kumar not by applicant; argument that as per medical report, the age of the prosecutrix is 18 years, I find it to be a fit case for bail.

¶6Let the applicant, Shivbhawan Vishwakarma, 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 sufÏcient 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 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.

¶7It 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 :- 22.12.2023 Pks High Court of Judicature at Allahabad, Lucknow Bench