This court granted bail to an applicant charged with rape and a POCSO offense, aged 16-18, citing inconsistencies in the FIR delay and victim's medical age. Bail conditioned on personal bond and sureties.
Applicant released on bail on personal bond and two local sureties with undertakings to cooperate and not tamper with witnesses.
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Court No. - 70
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26978 of 2019
Applicant :- Sachin Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rajendra Kumar Pandey Counsel for Opposite Party :- G.A.,Rajrshi Gupta
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.181 of 2019, under Sections 363, 376, 323 I.P.C. read with Section 7/8 Protection of Children from Sexual Offence Act, Police Station Sahibabad, District Ghaziabad.
Learned counsel for the applicant submits that according to the F.I.R., on 09.01.2019 applicant enticed away the victim aged about 16 years old and committed rape upon her. He also his mother who committed mar-peet with the victim and sent her to her house by sitting an auto rickshaw. He further submits that as per statement recorded under Section 164 Cr.P.C., applicant called the victim by giving threat and she went Banthala alone where applicant committed rape upon her. He further submits that incident occurred on 09.01.2019 and F.I.R. has been lodged by delay of 9 days. It is also submitted that victim did not disclose about the incident to her mother which is not natural. It is next submitted that to justify the delay a story has been set up that her elder sister came there victim told her about the incident. He also submits that as per medical report she was about 18 years old and it appears that she was a consenting party. 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. It is next contended that there is no criminal history of the applicant and he is languishing in jail since 20.01.2019.
Per contra, learned A.G.A. has opposed the bail prayer of the applicant by submitting that the statement recorded
under Section 164 Cr.P.C., the victim has levelled allegation against the applicant, therefore, he is not entitled for bail.
Considering the facts and circumstances of the case as well as submissions advanced by learned counsel for the parties, radiological age of the victim, delay in lodging the F.I.R. 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- Sachin 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 229A 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 for cancellation of bail.
Order Date :- 25.1.2021 Zafar
1 issue framed by the court
Whether the applicant is entitled to bail on charges of rape and POCSO involving a minor.
Sachin
Ali Zamin
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
