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Dara @ Shailendra Kumar vs State Of U.P. on 30 September, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

?Court No. – 14

Case :- BAIL No. – 9440 of 2019

Applicant :- Dara @ Shailendra Kumar

Opposite Party :- State Of U.P.

Counsel for Applicant :- Pramod Kumar Shukla,Ashish Kumar Mishra,Mohd. Kamran

Counsel for Opposite Party :- G.A.

Hon’ble Vikas Kunvar Srivastav,J.

Heard learned counsel for the accused-applicant, learned Additional Government Advocate for the State and perused the material available on record.

The present bail application has been filed by the accused-applicant who is involved in Case Crime No. 0172 of 2019, under Sections 354/Section377/Section506 IPC Sections 3/4/7/8 of POCSO Act, Police Station Kunda, District Pratapgarh.

The occasion of present bail application has arisen on rejection of the bail plea of the accused-applicant by Addl. Sessions Judge, court no. 2, Pratapgarh vide order dated 26.07.2019.

Learned counsel, reading over the First Information Report, as lodged by father of the victim, aged about 8 years and the boy aged about 5 years, submits that on 12.05.2019 at about 4 p.m., the accused-applicant appeared at the spot where children were playing. He warded off the other children except the daughter of the informant, aged about 8 years and the son, aged about 5 years. He first attempted to catch hold the daughter of the informant but when she fled away getting rid of him, he caught hold the boy, aged about 5 years. The accused-applicant being ill-motived carried the boy in a nearby washroom and tried to do oral sex with the child. When the boy cried for help, his mother came at the spot and rescued the child. She knew about the incident as narrated by the child to her.

Learned counsel for the accused-applicant in context of the aforesaid facts, as given in the First Information Report, states that the Police has booked the accused-applicant under Section 377 IPC. He further submits that from the facts, as alleged in the First Information Report, the offence under Section 377 IPC does not constitute. Learned counsel further submits that the accused-applicant has no any criminal history of like offences and he had no intention to commit such offence.

Protesting the bail application, learned AGA submits that so far as the intercourse, as defined under Section 377 IPC, might have not taken place, but there is no explanation on the part of the accused-applicant as to why he caught hold the child and as per statement of the child, recorded by the police, he admitted to commit the oral sex with the child. Therefore, the accused-applicant cannot be said innocent at the stage of bail. However, on the basis of instructions, he stated that there is no criminal offence as assigned to the accused-applicant. Further, on query, he submits that in the matter investigation has been concluded and chargesheet has been filed in the court and trial remains to continue.

Learned counsel for the accused-applicant submits that whatever offence is levelled by the police on the basis of First Information Report, the accused-applicant seeks a fair opportunity to put his defence during the trial and for the purpose, if he is granted bail, he shall submit himself with all the conditions imposed by the court and in the process of the court during trial as well as he abide himself to appear before the court as and when required. In case the accused-applicant is enlarged on bail, he shall not misuse the liberty of bail.

Considering the rival submissions of learned counsel for the parties, without expressing any opinion on the merits of the case and considering the nature of accusation, complicity of the accused-applicant, gravity of the offence and the severity of punishment, I find force in the argument of learned counsel for the accused-applicant. The accused-applicant is entitled to be released on bail in this case.

Let applicant-Dara @ Shailendra Kumar be released on bail in Case Crime No. 0172 of 2019, under Sections 354/Section377/Section506 IPC Sections 3/4/7/8 of POCSO Act, Police Station Kunda, District Pratapgarh, on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-

(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.

Order Date :- 30.9.2019

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