Allahabad High Court
Vivek Kumar Diwakar vs State Of U.P. And 3 Others on 9 January, 2023
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 73 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42249 of 2022 Applicant :- Vivek Kumar Diwakar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Manish Kumar Dwivedi Counsel for Opposite Party :- G.A. Hon'ble Siddharth,J.
Learned A.G.A. has informed that notice has been served upon the informant, but no one has put in appearance on his behalf.
Heard learned counsel for the applicant and learned A.G.A.
The instant bail application has been filed on behalf of the applicant, Vivek Kumar Diwakar, with a prayer to release him on bail in Case Crime No. 210 of 2022, under Sections 363,366,376(3) IPC and section 5/6 of POCSO Act of 2012 Police Station Karari, District- Kaushambi, during pendency of trial.
There are allegations against the applicant of enticement of minor girl with intent to marry and commission of rape besides offence under section 5/6 of POCSO Act. Learned counsel for the applicant has submitted that as per X-ray report of the victim she is aged about 17 years.Given margin of one year on higher side she can be considered to be major. As per statement of the victim recorded under 164 Cr.P.C. she is clearly a consenting party. The applicant is in jail since 12.7.2022 and has no criminal history.
Learned A.G.A. has opposed the bail prayer of the applicant but could not dispute the aforesaid facts.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, larger mandate of the Article 21 of the Constitution of India, considering the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018) 3 SCC 22 and recent judgment dated 11.07.2022 of the Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021 and considering 5-6 times overcrowding in jails over and above their capacity by the under trials and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
Let the applicant 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 subject to following conditions. Further, before issuing the release order, the sureties be verified.
1. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.
2. The applicant shall cooperate in the trial sincerely without seeking any adjournment.
3. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
4. That the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
5. The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and 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 to ensure presence of the applicant.
6. 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Order Date :- 9.1.2023 Atul kr. sri.