Allahabad High Court
Dharma vs State Of U.P. on 1 August, 2019
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 78
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25652 of 2019
Applicant :- Dharma
Opposite Party :- State Of U.P.
Counsel for Applicant :- Manoj Kumar Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
Counter affidavit filed on behalf of the State in Court today is taken on record.
Heard Sri Manoj Kumar Srivastava, learned counsel for the applicant and Sri Sheetal Prasad Chakarvarti, learned counsel for the State as well as perused the material on record.
The present bail application has been filed by the applicant-Dharma with a prayer to enlarge him on bail inCase Crime No. 163 of 2019, under Sections 452 and 354 I.P.C. and Sections 7/8 POCSO Act, Police Station-Qila, District-Bareilly, during the pendency of the trial.
It is argued by the learned counsel for the applicant that the first information report has been lodged by Smt. Jayvun Nisha on 3rd May, 2019 against three named accused persons including the applicant and one unknown person alleging therein that on 3rd May, 2019, when the informant went to do labour work like everyday, her daughter, namely, Meena was present at home, at 11:30 a.m., a friend of the applicant entered into her house and the applicant, co-accused Rasiya and one other were standing outside her house, hearing the voice of screaming from inside, one Afasana went inside her house and saw that the daughter of the informant was being teased by the friend of the applicant and was thinking of doing wrong things with her. Seeing Afasana, they ran away. Since the victim is a deaf and dumb girl, her statement under Section 164 Cr.P.C. has been recorded with the help of an expert, who understands the gesture. It has further been recorded that the applicant is innocent and since the applicant and the informant belong to different community, they were inimical to each other since long, due to which the present first information report has been lodged on false and frivolous allegations against the accused persons including the applicant. It has further been argued by the learned counsel for the applicant that no specific role has been assigned to the applicant in the first information report, in the statement of witness Afasana under Section 161 Cr.P.C. as well as in the statement of the victim recorded under Section 164 Cr.P.C. Only allegation made against the applicant is of standing outside the house of the informant. The informant has refused to get the victim medically examined, which also makes the prosecution case doubtful. The applicant has no criminal antecedents to his credit except the present one. It is next contended that 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. The applicant is in jail since 6th May, 2019.
Per contra learned A.G.A. has opposed the bail prayer of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserves any indulgence. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail. However, the learned A.G.A. could not dispute the factual submissions as urged by the learned counsel for the applicant.
Considering the material/evidence brought on record, the submissions made by the learned counsel for the parties as well as the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. & Another reported in (2018) 3 SCC 22, let the applicant 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 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.
(Manju Rani Chauhan, J.)
Order Date :- 1.8.2019
Sushil/-
