Court granted bail to applicant Naushad charged under IPC and POCSO. Bail allowed as victim, now major, supported applicant and denied rape allegation in statement. Conditions imposed relating to trial attendance, adjournments, and misuse of bail.
Released on bail with personal bond and two sureties subject to strict conditions regarding trial conduct and attendance.
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Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 15980 of 2018
Applicant :- Naushad Opposite Party :- State Of U.P. Counsel for Applicant :- Rajesh Kumar Singh Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the applicant, learned AGA and perused the record.
By means of this application, the applicant who is involved in case crime no. 364 of 2017, under Sections 363, 366, 376, 120-B IPC and 3/4 POCSO Act, P.S.- Salempur, District- Deoria is seeking enlargement on bail during the trial.
Learned counsel for the applicant in support of his application for bail submits that the applicant is innocent. He has been falsely implicated. It is further submitted that the FIR was registered by the father of the victim under sections 363, 366, 120-B IPC on 31.12.2017 for the alleged incident of kidnapping dated 28.12.2017. The girl was recovered on 16.01.2018 and her ossification test was done. As per ossification report, her age comes around 18 years. In her statement recorded u/s 161 Cr.P.C., she has stated that she went to with the applicant from Salempur to Gorakhpur and from there they went to Hyderabad, where they solemnized marriage and established physical relationship on her violation and accord. In her statement recorded u/s 164 Cr.P.C. she has reiterated the same version. Her both statements are in favour of the applicant. She is a consenting party. It is next submitted that the applicant is in jail since 21.01.2018 having no criminal antecedents except the present one.
Learned AGA has pointed out that the age of the girl as per high school certificate is 15 years. Learned counsel for the applicant has relied upon the latest citation of the Hon'ble Apex Court judgment Suhani and Another Vs. State of U.P. and Another (Civil Appeal No. 4532 of 2018) decided by the Hon'ble Apex Court on 26.04.2018.
Learned AGA 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 that the victim is in favour of the applicant, her husband. She is a major girl. Thus, after full consideration of the circumstances in which the victim herself has stated that she was in love with the applicant Naushad from last 5 years and she want to remain in the company of the applicant. She has denied any allegation of rape in her statement recorded u/s 164 Cr.P.C., I am of the view that the applicant has made out a fit case for bail.
Let the applicant Naushad , be released on bail in the aforesaid case crime number 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/SHE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, 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 THE HIM/HER 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.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 3.5.2018 Nisha
1 issue framed by the court
Whether bail should be granted to the applicant who is a major victim-consenting party and has alleged innocence.
Colour shows how this judgement treated each authority
Suhani and Another Vs. State of U.P. and AnotherRelied on¶8
Suhani and Another Vs. State of U.P. and Another (Civil Appeal No. 4532 of 2018)
Naushad
Rahul Chaturvedi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
Rahul Chaturvedi
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