Single-judge order granting bail under Section 439 Cr.P.C. to applicant not named in FIR but implicated via witness statement, noting co-accused granted bail and lack of flight risk.
Applicant released on bail on personal bond and two sureties with conditions of cooperation and non-interference.
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Court No. - 75
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48153 of 2022
Applicant :- Jagmohan @ Jagge Tomar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Alkesh Singh Counsel for Opposite Party :- G.A.,Ajay Dubey
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicant, learned Additional Government Advocate representing the State and learned counsel appearing on behalf of the first informant.
The instant bail application under Section 439 of Cr.P.C. has been filed on behalf of the applicant with a prayer to release him on bail in Case Crime No. 72 of 2020, under Sections 363, 354B, 376D of I.P.C. and 3/4 POCSO Act, Police Station-Bah, District-Agra, during the pendency of trial.
As per the prosecution case in brief, the informant who is father of the victim lodged F.I.R. on 27.04.2020 at 19:30 hours, against Vimal and one unknown person for the alleged offence punishable under Sections 363, 354A of I.P.C. and 7/8 POCSO Act with the allegations inter alia that on 27.04.2020 at about 7:30 pm when his minor daughter was locking the door, two boys came on motorcycle and took her on the motorcycle and started molesting her. On raising alarm, his neighbours Raj Kumar and Mamta reached there, then they ran away. F.I.R. also alleges that out of two boys one was identified as Vimal and another can be identified by the victim, his neighbours Raj Kumar and Mamta if he comes in from of them.
It is argued by learned counsel for the applicant that applicant is neither named in the F.I.R. nor in the statements under Section 161 and 164 of Cr.P.C. of the victim. No identification parade was conducted in order to identify the applicant by the victim and alleged eye-witnesses namely Raj Kumar and Mamta. The complicity of the applicant came into light during investigation on the basis of statement of one Komal Singh who has stated inter alia that he was told by one Rakesh Singh that another boy who was involved in the incident
along with Vimal was the present applicantJagmohan @ Jagge Tomer. It is also argued that coaccused Vimal Singh who is named in the F.I.R. and has been granted bail by the coordinate Bench of this Court vide order dated 01.11.2021 in Criminal Misc. Bail Application No. 21439 of 2021. Lastly, it is submitted by learned counsel for the applicant that there is no chance of the applicant of fleeing away from the judicial process or tampering with the prosecution evidence. The applicant is languishing in jail since 12.09.2022 having no criminal history to his credit.
Per contra , learned A.G.A. for the State as well as learned counsel for the informant opposed the prayer for bail of the applicant by contending that the applicant was also involved in the alleged offence but they could not dispute the above factual aspect of the matter as argued on behalf of the applicant.
Having heard learned counsel for the parties and examined the matter in its entirety, I find that applicant is neither named in the F.I.R. nor in the statements of the victim recorded under Section 161 and 164 Cr.P.C. and co-accused Vimal Singh has been granted bail, as noted above. The case of the applicant stands on better footing to that of co-accused Vimal.
In view of the above, considering the facts and circumstances of the case as well as keeping in view the nature of the offence, evidence, complicity of the accused and submissions of the learned counsel for the parties, I am of the view that the applicant has made out a fit case for bail. Hence, the bail application is hereby allowed .
Let the applicant- Jagmohan @ Jagge Tomar , 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) That the applicant shall cooperate in the expeditious disposal of the trial and shall regularly
attend the court unless inevitable.
(ii) That the applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police ofÏcer or tamper with the evidence.
(iii) That after his release, the applicant shall not involve in any criminal activity.
(iv) The identity, status and residential proof of sureties will be verified by court concerned before the release of the applicant on bail.
In case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of the applicant.
Order Date :- 19.4.2023 Kashifa
Digitally signed by :- KASHIFA High Court of Judicature at Allahabad
2 issues framed by the court
Whether the applicant is entitled to bail under Section 439 Cr.P.C. considering he is not named in FIR but implicated via statement of witness while co-accused was granted bail.
Whether the applicant poses a flight risk or threat of tampering with evidence to deny bail in a heinous offence involving minors.
1 provisions across 1 enactments
Jagmohan @ Jagge Tomar
State Of U.P.
Sanjay Kumar Singh
As recorded by the court registry
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