Allahabad High Court
Shiv Bahadur vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 4 April, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 27 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1469 of 2023 Applicant :- Shiv Bahadur Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another Counsel for Applicant :- Pawan Kumar Maurya Counsel for Opposite Party :- G.A. Hon'ble Brij Raj Singh,J.
Heard learned counsel for the applicant, learned AGA and perused the record.
The present bail application has been filed by the applicant Shiv Bahadur, with a prayer to enlarge him on bail in Case Crime No.0208 of 2021, under Sections 147, 148, 323, 504, 506, 427, 452, 376D I.P.C., and Section 5g/6 POCSO Act, 2012, Police Station Kohdaur, District Pratapgarh.
It is contended by learned counsel for the applicant that allegation of rape was levelled against the applicant due to long standing enemity between the father of the prosecutrix and the applicant. He has submitted that the complainant had earlier lodged case crime no.294 of 2020 under Sections 34, 427, 435, 504, 506 IPC against the applicant pertaining to land dispute and marpeet in which charge sheet has been filed by the Investigating Officer. Thereafter, this FIR has been lodged on 03.09.2021 under Sections 147, 148, 324, 323, 504, 506, 427, 452, 354 Kha which shows that no allegation of rape has been levelled against the applicant and only allegation of outraging the modesty has been levelled. However, the prosecutrix under Section 164 Cr.P.C. has not levelled any allegation of rape. However, she stated that fingering on her private part was done by the applicant. Learned counsel further submitted that present FIR is lodged only to pressurize the applicant because there is long standing enmity between the parties. He further submitted that the age of the girl as per school certificate is 17 years, 7 months and 19 days and she had refused for medical examination. Learned counsel submitted that criminal history has been explained in para 19 of the application. The applicant is in jail since 29.06.2022.
Shri Ashok Kumar Yadav, learned AGA opposed the prayer for bail and submitted that the victim is minor therefore, the applicant is not entitled to be released on bail.
Without expressing any opinion on the merits of the case, after hearing learned counsel for the parties and looking to the fact that earlier two FIR's have been lodged by father of the prosecutrix against the applicant and no allegation of rape has been levelled in present FIR. However Section 376 IPC is inserted later on. Thus, the changed version between the contents of FIR as well as statement under Section 164 of the prosecutrix and refusal of the prosecutrix for medical examination, I find it to be a fit case for bail.
Let the applicant, Shiv Bahadur, be released on bail in the above case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of 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.
It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The Trial Court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything in this order.
Order Date :- 4.4.2023 Pks