HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 39 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 19361 of 2015 Applicant :- Girjesh Opposite Party :- State Of U.P. Counsel for Applicant :- Satya Prakash Pandey,Ved Prakash Pandey Counsel for Opposite Party :- Govt. Advocate Hon'ble Ramesh Sinha,J.
Heard Sri Ved Prakash Pandey, learned counsel for the applicant, learned A.G.A. for the State and perused the record.
It has been submitted by learned counsel for the applicant that as per the medical report the prosecutrix is minor girl aged about 16 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. Although, she has made an allegation of rape against the applicant but the same has not been corroborated by any medical evidence and surrounding circumstances is totally belies the prosecution case as well as the statement of the victim recorded under section 164 Cr.P.C. Her medical report does not confirm the allegation of rape. The applicant is in jail since 9.12.2014.
Learned AGA opposed the prayer for bail .
Keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, submissions of the learned counsel for the parties and without expressing any opinion on merits of the case, I am of the view that the applicant has made out a case for bail.
Let the applicant Girjesh involved in Case Crime No. 923 of 2014, under Sections 376-A, 504, 506 IPC & 3/4 of Protection of children from Sexual Offences Act, P.S.-Tihar, District Shahjahanpur be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(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.
Order Date :- 2.6.2015 Ashish Pd.