Single-judge High Court awarded bail to applicant in rape case involving minor. Court imposed strict conditions including no witness tampering, personal presence, and expedited trial.
Release on bail with personal and two local sureties under specified conditions including no witness tampering and personal attendance.
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Court No. - 36
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11249 of 2020
Applicant :- Salim Opposite Party :- State of U.P. and Another Counsel for Applicant :- Manjeet Mishra Counsel for Opposite Party :- G.A.
Hon'ble Ali Zamin,J.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material on record.
The present bail application has been filed by the applicant with a prayer to enlarge him on bail in Case Crime No. 41 of 2018, under Section 376 IPC and 3/4 POCSO Act, P.S. Bhamora, District Bareilly
Learned counsel for the applicant submits that according to FIR, on 10.02.2018 at about 2.30 p.m. while victim aged 06 years was coming to the house from the field of the informant, on the way applicant took away the victim in the field and committed rape upon her. He further submits that the victim in statement under Section 164 Cr.P.C. has stated that applicant by taking off her " pant" lead over her, her elder father and mother reached at the place and time of incident, seeing them applicant ran away. According to the victim, her elder father and mother are witness of the incident. Witness Smt. Leelawati has stated that the applicant and victim went together from the house to field for informing about arrival of guest to the informant and while returning the applicant took away the victim in a deserted garden and committed alleged incident with her. He also submits that the applicant and informant belong to different religion due to which informant has been falsely implicated the applicant in the present case. He next submits that as per medical report, hymen has been found intact. Medical was conducted on the next date of the incident and as per statement of the witness Smt. Leelawati swelling occurred on the private part of the victim but as per medical report, no swelling has been found. He further submits 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 and the applicant is languishing in jail since 11.02.2018.
Per contra learned A.G.A. has opposed the bail prayer of the applicant and submits that victim was minor aged 06 years and as per statement of elder father and mother of the victim they came later on after the incident. The
victim has alleged that the applicant by taking her in a garden committed alleged incident upon her and informant has stated that swelling was on the private part of the victim. In medical report redness that on posteriors forchotee, no tear, no bleeding has been found.
Considering the facts and circumstances of the case, submissions advanced by the learned counsel for the parties, as per statement of the victim, applicant lied upon her and in medical report no swelling being found on her private part and also perusing the material on record, without expressing any opinion on merit of the case, the applicant is entitled for bail, let the applicant- Salim 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 will not tamper with the evidence and will not pressurize/intimidate the prosecution witnesses and will cooperate with the trial. The applicant 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 party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
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. In case of breach of any of the above conditions, it shall be a ground of cancellation of bail.
However, the trial court is directed to expedite the aforesaid case in accordance with law without granting unnecessary adjournments to either of the parties as expeditiously as possible.
Order Date :- 9.12.2020 MAA/-
3 issues framed by the court
Whether the applicant entitled to bail in a prosecution for rape under Section 376 IPC and POCSO Act.
Whether the applicant must furnish personal bond and two local sureties.
What conditions are imposed to prevent tampering with witnesses and abuse of bail.
6 provisions across 3 enactments
Salim
State of U.P.
Ali Zamin
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
