Allahabad High Court
Arun Kumar Gaur vs State Of U.P. And Another on 14 February, 2023
Author: Saroj Yadav
Bench: Saroj Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 81 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 15265 of 2021 Applicant :- Arun Kumar Gaur Opposite Party :- State of U.P. and Another Counsel for Applicant :- Upendra Kumar Mishra,Amir Khan,Mohd. Samiuzzaman Khan,Ram Shiromani Yadav,Satya Deo Ojha,Tanveer Zafar Khan Counsel for Opposite Party :- G.A.,Rajesh Kumar Singh,Shyam Kishore Tripathi Hon'ble Mrs. Saroj Yadav,J.
Supplementary affidavit filed today by learned counsel for the accused applicant, which is taken on record.
The present bail application has been filed on behalf of the applicant in Case Crime No. 12 of 2021, under Sections 363, 376D IPC and Section 5/6 of Prevention of Children from the Sexual Offences Act, Police Station Kotwali Hata, District Kushinagar, with the prayer to enlarge him on bail.
Heard Sri Mohd. Samiuzzaman Khan, learned counsel for the accused applicant and Sri D.P.S. Chauhan, learned Additional Government Advocate for the State respondent. None turned up on behalf of the complainant though the name of learned counsel for the complainant is printed in the cause list.
It is submitted by the learned counsel for the accused applicant that the accused applicant is innocent and has been falsely implicated in the case due to enmity and altercations among the students of the school. He further submitted that the accused applicant is not named in the first information report. He further submitted that the accused applicant is the student of 11th standard in the same school, where the victim studies. He further submitted that the victim has made similar allegations against one co-accused namely Golu, whose name has been dropped by the Investigating Officer from the charge sheet. He further submitted that the victim has refused to undergo her internal medico legal examination. In the ossification test, the age of the victim has been found 17 years. He further submitted that there is no chance of the applicant's fleeing away from the judicial process or tampering with the prosecution evidence. He further submitted that the accused applicant does not have any criminal history as has been mentioned in paragraph no. 18 of the affidavit filed in support of the bail application. The accused applicant is languishing in jail since 05.02.2021, as such, he may be enlarged on bail.
Per contra, learned A.G.A. appearing on behalf of the State-respondent opposed the bail application of the accused applicant and submitted that though the accused applicant is not named in the F.I.R. but the victim, in her statements recorded under Sections 161 & 164 Cr.P.C. has stated that the accused applicant also made physical relations with her, therefore, he should not be enlarged on bail.
Considered the rival submissions and perused the material available on record.
It transpires from the record that the accused applicant is not named in the FIR and he is the student of 11th standard in the same school, where the victim studies. The victim has refused to undergo her internal medico legal examination.
Considering all the facts and circumstances of the case, without commenting on the merits of the case, it appears just to enlarge the applicant on bail.
Accordingly, the bail application filed on behalf of applicant is allowed.
Let the applicant Arun Kumar Gaur involved in Case Crime No. 12 of 2021, under Sections 363, 376D IPC and Section 5/6 of Prevention of Children from the Sexual Offences Act, Police Station Kotwali Hata, District Kushinagar, 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 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 party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
(vi) The computer generated copy of such order shall be self attested by the counsel of the party concerned.
(vii) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
It may be observed that in the event of any breach of the aforesaid conditions, the court below shall be at liberty to proceed for the cancellation of applicant's bail.
It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.
(Mrs. Saroj Yadav, J.) Order Date :- 14.2.2023 Arun