Jagdish Kumar Bhartiya vs State Of U.P. And 3 Others

Vivek Kumar Singh, J

Supplementary Affidavit filed today on behalf of the applicant is taken on record

Heard learned counsel for the parties and perused the material brought on record.

This the Second Bail Application of the applicant. The First Bail Application was dismissed as withdrawn with liberty to file fresh bail application.

It is contended by learned counsel for the applicant that applicant is innocent and has been falsely implicated in the present case due to suspicion. The First Information Report in the present case has been lodged against unknown persons, applicant is not named in the First Information Report. It is next submitted that a concocted and false story has been set up by the prosecution whereas the applicant has not committed any offence as alleged. There is no independent, impartial reliable witness of the alleged incident. There is various contradiction in the statement of the victim recorded under section 161 and 164 Cr.P.C. It is also contended that PW-1 has turned hostile before the trial court. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused has also been touched upon at length. It is further submitted that there is no possibility of applicant either fleeing away from the judicial process or tampering with the witnesses. Applicant is in jail since 19.07.2018, and undertakes that he will not misuse the liberty, if granted.

Learned A.G.A. has vehemently opposed the bail prayer of the applicant without disputing the aforesaid submissions of the learned counsel for the applicant and submitted that in case applicant is released on bail he will misuse the liberty of bail.

Having heard the submissions of learned counsel of both sides, nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment, and larger mandate of the Article 21 of the Constitution of India, the dictum of Apex Court in the case of Dataram Singh v. State of U.P. and another, reported in (2018) 2 SCC 22 and without expressing any opinion on the merits of the case, I find it to be a case of bail.

Let applicant- Jagdish Kumar Bhartiya, be released on bail arising out of Case Crime No. 852 of 2020, under Sections - 363, 366, 376D, IPC and Section 5/6 of POCSO Act, Police Station- Naini, District- Prayagraj, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the concerned court below subject to following conditions:- :-

(i) The applicant shall file an undertaking to the effect that he 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 identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.

The trial court is directed to expedite the trial of the present case and conclude the same as expeditiously as possible, keeping in view the law laid down by the Apex Court in the case of Alakh Alok Srivastava v. Union of India and others reported in AIR 2018 SC 2440, if there is no legal impediment.

It is clarified that the observations, if any, made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the ultimate merits of the case.