HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 17 Case :- BAIL No. - 614 of 2015 Applicant :- Mukesh Kumar Tiwari (Third Bail) Opposite Party :- The State Of U.P Counsel for Applicant :- Gyanoday Shukla Counsel for Opposite Party :- Govt. Advocate Hon'ble Ramesh Sinha,J.
Heard Sri Mukesh Kumar Tiwari holding brief of Sri Gyanoday Shukla, learned counsel for the applicant and Sri Alok Mohan Upadhyay, learned A.G.A. appearing for the State and perused the record.
The first bail application of the applicant was rejected by Hon'ble Surendra Vikram Singh Rathore, J. vide orders dated 21.7.2014 and 21.11.2014 for want of prosecution, hence this third bail application.
Learned counsel for the applicant has made a statement at Bar that till date only charges have been framed against the applicant and the statement of any prosecution witness has not been recorded.
It has been contended by the learned counsel for the applicant that the prosecutrix no doubt is aged about seven years but the applicant has been falsely implicated in the present case by the mother of the prosecutrix by misusing her on account of the fact that she used to run a liquor shop in the village without having any license which was objected by the applicant. Admittedly, no statement of the prosecutrix was recorded under Section 164 Cr.P.C. The medical examination report of the prosecutrix shows no mark of injury on her persons. The allegation of outraging the modesty against the applicant, is absolutely false and frivolous. The applicant has no other reported criminal antecedent. The applicant is in jail since 25.11.2013.
Learned A.G.A. opposed the prayer for bail and submitted that so far as trial of the applicant is concerned in the counter affidavit which has been filed by him in the second bail application of the applicant, it has been stated by him that the case is being fixed for evidence of prosecution witness and thereafter he could not have knowledge about the progress of the trial but could not dispute the aforesaid fact as argued by learned counsel for the applicant.
Without expressing any opinion on the merits of the case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tempering of the witnesses and prima facie satisfaction of the Court in support of the charge, the applicant is entitled to be released on bail in this case.
Let the applicant Mukesh Kumar Tiwari involved in Case Crime No. 538 of 2013 under Sections 354 (Kha), 504, 506 I.P.C., 3 (1) (xi) S.C./S.T. Act and 7/8 POCSO Act, police station Bazar Shukla, District Amethi/Sultanpur be released on bail on his furnishing a personal bond with 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.
The trial court is directed to expedite the trial of the present case and conclude the same expeditiously preferably within a period of six months from the date of production of a certified copy of this order in view of Section 309 Cr.P.C., if there is no legal impediment.
It is made clear that if the trial is at the stage of recording of evidence of the applicant under Section 313 Cr.P.C., the present order will not be made effective and the applicant shall not be released by the court below in pursuance of the present order.
Order Date :- 1.5.2015 shiraz