Allahabad High Court
Girdhari vs State Of U.P. And 2 Others on 29 January, 2021
Bench: Ajit Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 90
Case :- CRIMINAL APPEAL No. - 3377 of 2020
Appellant :- Girdhari
Respondent :- State Of U.P. And 2 Others
Counsel for Appellant :- Vinay Kumar Tripathi
Counsel for Respondent :- G.A., Rajesh Kumar Dubey
Hon'ble Ajit Singh,J.
Order on the Criminal Appeal as well as Criminal Misc. Bail Application No. 02 of 2020.
Heard learned counsel for appellant, the learned counsel Shri Rajesh Kumar Dubey appearing on behalf of the victim, learned AGA on behalf of State and perused the impugned judgement.
The present appeal under Section 101 (5) of the Juvenile Justice (Care and Protection of Children Act, 2015) has been filed on behalf of minor Girdhari through his guardian (uncle) Nem Kumar challenging the order dated 17.06.2020 passed by Incharge Special Judge (POCSO Act), Mathura rejecting the Bail Application No. 706 of 2020 (Girdhari Vs. State of U.P.) in Case Crme No. 257 of 2019, S.S.T. No. 517 of 2020, under Section 376-D, 506 IPC and 3/4 POCSO Act, PS Baldeo, District - Mathura with prayer that the impugned judgement and order dated 17.06.2020 be quashed and the present appeal be allowed releasing the appellant on bail.
In the First Information Report it was mentioned that three accused persons namely Girdhari (the present appellant), Subham Chaudhari and Durgesh had committed rape upon the daughter of the complainant in the month of August and it was also mentioned in the FIR that the present accused appellant called the alleged victim to Lucknow and then, carried away her to Kanpur and thereafter, to Agra and from Agra to District - Mathura where the allegation of rape was levelled against the accused persons including the present appellant Girdhari.
The learned counsel for the appellant has submitted that the present accused is quite innocent and he has been falsely implicated in this case. It is further submitted that the incident is alleged to have taken place on 6/7.08.2019 but it was reported to the police on 01.10.2019 and no specific reason was narrated by the complainant why the First Information Report was lodged so late. The learned counsel for the appellant also submits that there was enmity going on between the complainant and the present accused's family for committing murder of the father of the present accused and it is quite unnatural that the present accused would have called the daughter of the murderer of his father,and it is also unnatural that the daughter of the murderer (the complainant) would listen to the call of the accused and accompany to him i.e. the prosecution story set up by the complainant is highly improbable and unbelievable. Lastly, it is submitted by the learned counsel for the appellant that similarly placed accused Subham Chaudhary (minor) has already been granted bail by another bench of this Court, vide judgment and order dated 9.11.2020, passed in Criminal Revision No. 844 of 2020, a copy of the bail order allowing the said criminal revision has been submitted by the learned counsel for the present accused appellant during the hearing, which is taken on record.
Bail application is opposed by the learned AGA on behalf of the State as well as learned counsel Shri Rajesh Kumar Dubey appearing on behalf of the complainant. It is submitted by them that the victim girl has specifically nominated the accused persons including the present accused appellant in her statements recorded under Sections 161 Cr.P.C. and 164 Cr.P.C.
Considering the facts and circumstances of the case as also the nature of evidence adduced during trial and without expressing any opinion on the merit of the case, this Court finds that the appellant deserves for bail.
Accordingly, the impugned judgment and order dated 17.06.2020 is quashed and the criminal appeal is allowed.
The bail application also stands allowed.
Let appellant Girdhari be released on bail in Case Crme No. 257 of 2019, S.S.T. No. 517 of 2020, under Section 376-D, 506 IPC and 3/4 POCSO Act, PS Baldeo, District - Mathura on his furnishing personal bonds with two sureties of the like amount to the satisfaction of the Court concerned subject to the following conditions:-
(1). The appellant 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;
(2). The appellant 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;
(3). In case, the appellant misuses the liberty of bail 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 may initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(4). The appellant 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.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the learned counsel for the applicant alongwith a self attested identity proof of the said persons (preferably Aadhar Card) mentioning the mobile number (s) to which the said Aadhar Card is linked before the concerned Court/Authority/Official.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 29.1.2021
LBY
