Allahabad High Court
Gufran vs State Of U.P. on 1 June, 2021
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 67
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12778 of 2021
Applicant :- Gufran
Opposite Party :- State of U.P.
Counsel for Applicant :- Abhishek Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the applicant as well as learned A.G.A for the State and perused the record.
By means of this application, the applicant who is involved in case crime no.470 of 2020, under Section 376, 506 IPC, Police Station-Kotwali Mandi, District-Saharanpur is seeking enlargement on bail during the trial.
Submission made by learned counsel for the applicant is that applicant and the victim are cousin brother and sister(daughter of mama). She is major girl. As per radiological report, victim is aged about 19+ years. Her 161 Cr.P.C and 164 Cr.P.C. statement are self-revealing which indicates that there was a promise to marry and on this promise, she virtually surrendered her entire entity before the applicant who used the girl for considerable period and thereafter, wriggled out from his earlier promise. Now, through 156(3) Cr.P.C. application, the present FIR came into existence. The next submission is that as per the ratio laid down by Hon'ble the Apex Court in the case of Dr. Dhruvaram Murlidhar Sonar Vs. State of Maharashtra & Ors. AIR (2019) SC 327 as well as Vinod Kumar Vs. State of Kerala (2014) 2 SCC (Criminal) 663, no case of Section 376 IPC is made out.
Learned A.G.A. opposed the prayer for bail by relying upon the judgment of Hon'ble the Apex Court in the case of Aparna Bhat and other Vs. State of Madhya Pradesh and another in Criminal Appeal No.329 of 2021(Special Leave Petition(CRL) No.2531 of 2021) arising out of S.L.P.(CRL.) Diary No.20318 of 2020.
I have gone through the judgments of Hon'ble the Apex Court and I am of the considered opinion that she is major girl and on her volition and consent, surrendered before the applicant to be used by him. Moreover, she understands the far reaching repercussions of pre-marital sex. The applicant is languishing in jail since 20.08.2020.+
Learned A.G.A opposed the prayer for bail but could not dispute the aforesaid facts and the legal submissions as argued by the learned counsel for the applicant.
Keeping in view the nature of the offence, evidence, complicity of the accused and submissions of learned counsel for the parties, I am of the view that the applicant has made out a case for bail.
Let the applicant, Gufran, who is involved in the aforesaid case 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.
(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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 IPC.
(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., MAY BE ISSUED AND IF 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 IPC.
(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) 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.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.
Since the bail application has been decided under extra-ordinary circumstances, thus in the interest of justice following additional conditions are being imposed just to facilitate the applicant to be released on bail forthwith. Needless to mention that these additional conditions are imposed to cope with emergent condition-:
1. The applicant shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored.
2. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
3. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
4. 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 :- 1.6.2021
Sumit S
