Allahabad High Court
Salman vs State Of U.P. And Another on 19 August, 2019
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 28 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31339 of 2019 Applicant :- Salman Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Virendra Singh Parmar,Hariom Singh Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Heard Mr. V. S. Parmar, learned counsel for the applicant and the learned A.G.A. for the State.
The first informant Tara Chand has been impleaded as opposite party No.2 primarily on the ground that the prosecutrix has been shown to be below 16 years of age.
Learned counsel for the applicant invited the attention of the Court to the photo copy of the High School Certificate of the prosecutrix, which is on record at page 21 of the paper book and on the basis thereof, he submits that on the date of incident the prosecutrix was aged about 17 years and 10 months. Consequently, the mandate of Section 439 Cr.P.C. is not required to be complied with in the present case. Accordingly, the Court proceeded to hear the bail application.
In respect of an incident which occurred on 6.5.2019, an F.I.R. was lodged on 23.5.2019 by one Tara Chand, which was registered as Case No. 0316 of 2019 under section 366 IPC, P.S. Jagdishpura, District Agra. In the aforesaid F.I.R., three persons namely, Salman, Seema and Shakir were nominated as the named accused. It appears that subsequently the statement of prosecutrix was recorded under section 161 Cr.P.C. and on the basis thereof, Sections 363, 376 and 328 IPC and 3/4 POCSO Act were added.
Learned counsel for the applicant submits that as per the statement of the prosecutrix, as recorded under section 164 Cr.P.C., the girl was the consenting party. The prosecutrix and the applicant are alleged to have known each other for the last two years. On the aforesaid factual premise, he submits that applicant is liable to to be enlarged on bail.
Per contra, the learned A.G.A. has opposed the prayer for bail. However, he could not dispute the factual and legal submissions raised by learned counsel for the applicant.
Having heard the learned counsel for the applicant and the learned A.G.A. for the State and upon perusal of the material brought on record as well as the complicity of the applicant and without making any comment on the merits of the case, I find that applicant has made out a case for bail.
Let the applicant Salman, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) 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 THE HIM/HER IN ACCORDANCE WITH LAW.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 19.8.2019 Arshad