Allahabad High Court
Mangaldeep Kharwar @ Ajeet Kharwar vs State Of U.P. And 2 Others on 1 October, 2020
Author: Ali Zamin
Bench: Ali Zamin
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 30 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 15731 of 2020 Applicant :- Mangaldeep Kharwar @ Ajeet Kharwar Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Rajneesh Kumar Upadhyay Counsel for Opposite Party :- G.A. Hon'ble Ali Zamin,J.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material on record.
The present bail application has been filed by the applicant with a prayer to enlarge him on bail in Case Crime No.19 of 2019, under Sections 363, 366, 328, 376 I.P.C. and 3/4 POCSO Act, Police Station Mardah, District Ghazipur.
According to F.I.R. version on 21.01.2019, applicant enticed away the daughter of the informant aged about 16 years.
Learned counsel for the applicant submits that as per statement under Section 161 Cr.P.C., the victim has stated that she went Ludhiana along with applicant out of her own will and solemnized marriage with the applicant in a temple, she lived as husband and wife. He further submits that as per parivar register date of birth of the victim is 01.01.1999. He further submits that in statement under Section 161 Cr.P.C., the father of the victim has stated that four months earlier also such incident was committed by the applicant and when he scolded the victim, then she assured that no further mistakes will be committed by her. It is also submitted that radio-logical age of the victim has been ascertained 16-17 years, in which either side two years variation is possible and variation favourable to accused will be taken into account. As per recovery memo she was recovered from District Ghazipur while in statement under Section 164 Cr.P.C., she stated that when she informed to her house then brought by the police. The applicant has not committed the alleged offence. He has been falsely implicated in the present case. There is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and, in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail. It is next contended that there is no criminal history of the applicant and is languishing in jail since 21.04.2019.
Per contra, learned A.G.A. has opposed the bail prayer of the applicant and submits that as per medical report age of the victim has been ascertained 16 years. In high school certificate date of birth of the victim is mentioned 01.01.2003, according to which, she was also near about 16 years. In statement under Section 164 Cr.P.C., the victim has stated that applicant gave something for drinking, taking which she became unconscious thereafter, he took away her Ludhiana and by beating established relationship, therefore, the applicant is not entitled for bail.
Considering the facts and circumstances of the case as well as submissions made by learned counsel for the parties, radio-logical age of the victim, her statement and also perusing the material on record, without expressing any opinion on merit of the case, the applicant is entitled for bail, let the applicant- Mangaldeep Kharwar @ Ajeet Kharwar involved in aforesaid case crime be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions :-
(i) The applicant shall file an undertaking to the effect that he will not tamper with the evidence and will not pressurize/intimidate the prosecution witnesses and will cooperate with the trial. The applicant 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.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
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. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Order Date :- 1.10.2020 Jitendra