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Judgment
Mohd. Faiz Alam Khan, J
Counter affidavit filed on behalf of the State and rejoinder affidavit filed on behalf of the applicant, both are taken on record.
Heard Shri Vishwesh Pratap Singh, learned counsel for the accused/applicant as well as learned A.G.A. for the State and perused the record.
This bail application has been moved by the accused/applicant- Bhure for grant of bail, in Case Crime No. 452 of 2011, under Sections 363, 366, 376 IPC, Police Station Hargaon, District Sitapur, during trial.
Learned counsel for the accused-applicant while pressing the bail application submits that it is a case of false implication. The FIR of this case was lodged by the father of the prosecutrix on 24.6.2011 by moving an application under Section 156(3) Cr.P.C. after taking legal advice under the orders of the Magistrate alleging therein that the named six accused persons including the applicant had abducted the prosecutrix aged about 12 and 1/2 years on 24.6.2011 and since thereafter the prosecutrix is not traceable.
It is further submitted that during the course of investigation the prosecutrix was recovered from the house of co-accused Mani Ram and her statement statement under Section 161 Cr.P.C. was recorded wherein she had levelled allegation of abduction and rape only against the accused Mani Ram and in her statement recorded under Section 164 Cr.P.C. she did not impute any allegation against any one and after thorough investigation the charge sheet was filed only against co-accused Mani Ram on 25.11.2011 and the applicant and other co-accused persons were exonerated.
It is further submitted that it was in the year 2014 after recording of the statement of the prosecutrix/ victim before the trial court as P.W. 2 wherein she had imputed allegation of rape against the applicant and co-accused Mani Ram an application under Section 319 Cr.P.C. was moved by the prosecution and vide order dated 12.11.2021 the trial court summoned the applicant to face trial for committing the offences under Sections 363, 366, 376 IPC. The prosecutrix was also medically examined and no abnormality or any injury has been noticed on her person.
Highlighting the above facts, it is vehemently submitted that the FIR of this incident was lodged in the year 2011 and the prosecutrix was testified before the trial court as P.W. 2 in the year 2014 and after 10 years of the alleged incident i.e. in the year 2021 the applicant has been summoned by the trial court under Section 319 Cr.P.C. to face trial, while no allegation of any kind was levelled by the prosecutrix against the instant applicant either in her statement recorded under Section 161 Cr.P.C. or in her statement recorded under Section 164 Cr.P.C. Thus the trial court has committed patent illegality in summoning the applicant to face trial after 10 long years of submission of the charge sheet.
It is further submitted that the applicant is in jail in this case since 12.11.2021. He is not having any criminal antecedents and the case of the prosecution is per se doubtful as the Investigating Officer after thorough investigation exonerated the applicant and the prosecutrix neither in her statement recorded under Section 161 Cr.P.C. nor in her statement recorded under Section 164 Cr.P.C. had taken the name of the applicant. There is no apprehension that the accused-applicant after release on bail, may flee from the process of law or may otherwise misuse the liberty.
Learned A.G.A. on the other hand submits that the applicant is an accused of committing heinous offence and therefore he is not entitled to be released on bail.
Having heard learned counsel for the parties and having perused the record, it is evident that the FIR in the instant case was lodged by moving an application under Section 156 (3) Cr.P.C. The prosecutrix in her statement recorded under Sections 161 and 164 Cr.P.C. had not imputed any allegation against the instant applicant and therefore finding no evidence against the applicant the Investigating Officer has submitted charge sheet against only co-accused Mani Ram, exonerating the applicant and other co-accused persons. It was after 10 years of filing the charge sheet on the basis of an application moved by the prosecution under Section 319 Cr.P.C. the trial court had summoned the applicant to face trial on the basis of the statement of the prosecutrix recorded as P.W.2 in the year 2014, wherein she had taken the name of the applicant as one of the accused who had committed rape on her. It is vehemently submitted on behalf of the applicant that the trial court has committed patent illegality in summoning the applicant to face trial while he was exonerated by the Investigating Officer and was even not named by the prosecutrix in her statement recorded under Sections 161 and 164 Cr.P.C. The applicant is in jail in this case since 12.11.2021 and he is also not having any criminal history. His presence could be secured before the trial court by placing adequate conditions.
Keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, submissions of the learned counsel for the parties and without expressing any opinion on the merits and demerits of the case, I am of the considered view that applicant has made out a case for bail. The bail application is allowed.
Let the applicant- Bhure involved in the aforesaid case be released on bail on furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned subject to following conditions:-
(i) The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial.
(ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment.
(iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Observations made herein-above are only for the purpose of disposal of bail application and the same shall not have any bearing on the trial of the case.