HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 1

Case :- CRIMINAL MISC. BAIL APPLICATION No. – 38705 of 2019

Applicant :- Firoj Yadav @ Ajay Yadav

Opposite Party :- State Of U.P.

Counsel for Applicant :- Amaresh Yadava

Counsel for Opposite Party :- G.A.

Hon’ble Ramesh Sinha,J.

Heard Sri Rajveer Upadhyay holding brief of Sri Amaresh Yadav, learned counsel for the applicant, Sri G.P.Singh, learned A.G.A. appearing for the State and perused the record.

It has been contended by the learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case.He further submits that initially the FIR was registered for the offence under Section 354 I.P.C. but subsequently when the statement of the prosecutirx under Section 164 Cr.P.C. was recorded in which she stated that the co-accused Jai Prakash committed rape on her and the applicant caught-hold of her, the offence under Section 376D I.P.C. and Section 5/6 POCSO Act were added. He next argued that as per the FIR, no age of the victim has been disclosed but as per the medical examination report she is stated to be a major girl aged about 19 years. Even if the statement of the prosecutirx under Section 164 Cr.P.C. is taken into account, there is no allegation of rape against the applicant as the applicant had caught-hold the victim, whereas the co-accused Jai Prakash committed rape on her. The applicant is in jail since 2.8.2019.

Learned A.G.A. opposed the prayer for bail.

Without expressing any opinion on the merits of the case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tampering of the witnesses and prima facie satisfaction of the Court in support of the charge, the applicant is entitled to be released on bail in this case.

Let the applicant-Firoj Yadav @ Ajay Yadav involved in Case Crime No.31 of 2019, under Sections 376D, Section323 I.P.C. and Section 5/6 POCSO Act, 2012, Police Station Tahbarpur, District Azamgarh be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the 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.

(v) The applicant shall surrender his passport, if any, before the trial court shall furnish an undertaking not to leave the country until permission is obtained by him from this Court or till the conclusion of the trial.

The case of the applicant is distinguishable from the case of co-accused Jai Prakash.

Order Date :- 30.9.2019/NS