Criminal Misc. Bail Application wherein the High Court granted bail to the applicant charged under IPC sections 363, 366, 376D and POCSO Act, subject to standard conditions, after hearing counsel and reviewing the material on record.
The applicant is released on bail with a personal bond and two local sureties.
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Court No. - 36
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21468 of 2020
Applicant :- Nikhil Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sunil Kumar Dubey Counsel for Opposite Party :- G.A.,Ashish Kumar Dwivedi
Hon'ble Ali Zamin,J.
Heard learned counsel for the applicant, learned A.G.A. for the State as well as learned counsel for the informant 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.368 of 2019, under Section 363, 366, 376D, 342 IPC and 5/6 POCSO Act, P.S. Singhawali Aheer, District Baghpat.
Learned counsel for the applicant submits that according to FIR, on 26.10.2019 at 6.30 a.m. victim aged 15 years while going to serve tea to her grand father at tubewell, she was enticed away by five boys including the applicant, grandfather of the victim called much but no one headed. According to statement of victim under Section 161 Cr.P.C., Ankit and Nitish took away her. Before the doctor she has stated that when she was going to serve tea to his grandfather then Ankit and Nitish came and fainting her took away where already four boys were there and Ankit committed rape upon her. In statement under Section 164 Cr.P.C. she has stated that two boys came by bike and by putting "Dupatta" on her face took away her in a field and kept whole night in the field. They called a car in which three boys and a driver were already there. They took away her in city and in a room five boys committed rape upon her, whose name is Sagar, Nikil, Nitish, Ankit and another Ankit. They left her at Meerut railway station. Ankit called her brother that the girl has come. He called a man of the village, he took the victim and handed over her to the Pradhan. Pradhan called her grandfather, who took her. He further submits that the victim was taken away to different places but she did not made any alarm. Co-accused Ankit, against whom there is allegation of rape has been enlarged on bail by the Juvenile Justice Board. He also 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 16.12.2019.
Per contra, learned A.G.A. as well as learned counsel for the informant have opposed the bail prayer of the applicant and submit that as per medical report, abdomen pain has been stated by the victim and she has levelled allegation of rape against all the accused person. Applicant and co-accused had enticed away the victim and grand father called them but nobody heeded. They further submit that as per radiological age, she was 15 years approx, hence, minor, therefore, applicant is not entitled for bail.
Considering the facts and circumstances of the case, submissions advanced by learned counsel for the parties, applicant and co-accused enticed away her, on the call of grand father of the victim nobody heeded, as per statement of the victim before the doctor, co-accused Ankit committed rape upon her and Ankit has been enlarged on bail 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- Nikhil 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.
Order Date :- 7.12.2020 MAA/-
Nikhil
State of U.P.
Ali Zamin
As recorded by the court registry
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