Allahabad High Court
Jitendra vs State Of U.P. And Another on 1 October, 2019
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 1 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40729 of 2019 Applicant :- Jitendra Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Satyendra Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Ramesh Sinha,J.
Heard Sri S.K.Singh, learned counsel for the applicant, Sri A.R.Chaurasia, learned A.G.A. appearing for the State and perused the record.
It has been contented by learned counsel for the applicant that as per medical opinion, prosecutrix is 17 years. The law is settled that the margin of error in ascertaining the age by radiological examination is two years on either side and hence the possibility of the prosecutrix being major cannot be ruled out. He further submitted that as per 164 Cr.P.C. statement of the prosecutrix, she appears to be a consenting party as she was having affair with the applicant for the last four years. She voluntary eloped with the applicant and also married him. It is not a case of taking away or enticing away the prosecutrix. Moreover, the prosecutrix in her statement under Section 164 Cr.P.C. has not levelled any no allegation of rape against the applicant. The applicant has no criminal history. The applicant is in jail since 20.7.2019.
Learned A.G.A. opposed the prayer for bail.
Without expressing any opinion on the merits of the case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tampering of the witnesses and prima facie satisfaction of the Court in support of the charge, the applicant is entitled to be released on bail in this case.
Let the applicant-Jitendra involved in Case Crime No.460 of 2019, under Sections 363, 366, 376 I.P.C. and 3/4 POCSO Act, 2012, Police Station Kotwali, District Maharajganj be released on bail on his furnishing a personal bond of Rs.one lac with two sureties (one should be of his family member) each in the like amount to the satisfaction of the 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.
(v) The applicant shall surrender his passport, if any, before the trial court & shall furnish an undertaking not to leave the country until permission is obtained by him from this Court or till the conclusion of the trial.
The trial court is directed to expedite the trial of the aforesaid case and conclude the same within preferably a period of one year from the date of production of a certified copy of this order, if, there is no legal impediment.
Order Date :- 1.10.2019/NS