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

Court No. - 64 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 37506 of 2023 Applicant :- Bhoora Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Manish Yadav Counsel for Opposite Party :- G.A.,Gunjan Sharma Hon'ble Siddharth,J. Heard learned counsel for the applicant and learned A.G.A. for the State. The applicant has been enlarged on bail in Crl. Misc. Bail Application No.37453 of 2023 by the order of date, which is as follows :- " There is allegation against applicant in the first information report that he abducted minor daughter, aged about 15-16 years, of the informant with the help of four unknown accused. It was alleged that they are persons having criminal antecedents. Learned counsel for the applicant submits that as per report of CMO the age the victim is about 17 years. Given margin of one year on higher side she can be considered to be major. In her statement recorded under Section 161 Cr.P.C she has stated that she was abducted by the applicant and kept in jungle. Applicant used to bring food for her and they used to eat together. Her grandfather came in her search and thereafter other people came. Applicant left her and ran away. She did not made any allegation regarding commission of offence of rape against applicant. Learned counsel for the applicant further submits that subsequently in her statement recorded under Section 164 Cr.P.C, she made allegation of rape against the applicant. He has submitted that victim was always a consenting party and made allegation of rape only after she went in the custody of her parents. She again eloped with the applicant subsequently and another first information report was lodged against the applicant on 28.06.2022 under Section 366 I.P.C. Subsequently implication under Sections 363, 376 I.P.C and 3/4 of POCSO Act were made. It is subject matter of Crl. Misc. Bail Application No.37506 of 2023. He has further submitted that in the statement of the victim recorded in the subsequent case under Section 164 Cr.P.C., she has admitted that she knows the applicant for last one year. She had love affair with him and had lived with him at Moradabad for one month like husband and wife. She entered into physical relation-ship with the applicant with consent. Applicant is in jail since 08.09.2022. He has criminal history of seven cases explained in bail application. Learned AGA has opposed the prayer for bail but could not dispute the above submissions. In both the bail applications the accused, informant and victim are same. Keeping in view the nature of the offence, evidence, complicity of the accused; submissions of the learned counsel for the parties noted above; finding force in the submissions made by the learned counsel for the applicant; keeping view the uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under trial having fundamental right to speedy trial; larger mandate of the Article 21 of the Constitution of India and recent judgment dated

11.07.2022 of the Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021 and considering 5-6 times overcrowding in jails over and above their capacity by the under trials and without expressing any opinion on the merits of the case and for the reasons given in Crl. Misc. Bail Application no. 37453 of 2023, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed. Let the applicant, Bhoora, involved in Case Crime No.90 of 2022, under Sections 363, 366, 376 I.P.C and 3/4 POCSO Act, Police Station Nagla Khangar, District-Firozabad be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.

(i) The applicant shall not tamper with the evidence or threaten the witnesses.

(ii) 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.

(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.

(iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail 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.

(v) 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. In case of breach of any of the above conditions, the complainant is free to move an application for cancellation of bail before this court. Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted. Order Date :- 17.11.2023 SS High Court of Judicature at Allahabad