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Jeeshan vs State Of U.P. And Another on 6 July, 2021

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HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 65

Case :- CRIMINAL MISC. BAIL APPLICATION No. – 12890 of 2021

Applicant :- Jeeshan

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Madan Singh

Counsel for Opposite Party :- G.A.

Hon’ble Samit Gopal,J.

Matter taken up through the video conferencing.

Heard Sri Madan Singh, learned counsel for the applicant, Sri Ankit Srivastava, learned brief-holder for the State and perused the material on record.

Notice was issued to the opposite party no. 2 vide order dated 10.6.2021 . As per the office report dated 2.7.2021, letter has been received from the Chief Judicial Magistrate, Moradabad stating therein that notice has been served on the opposite party no. 2. From a perusal of the said letter along with its enclosures, it is apparent that notice has been served through the concerned police station on 20.6.2021. No one appears on behalf of the opposite party no. 2.

This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Jeeshan, seeking enlargement on bail during trial in connection with Case Crime No. 495 of 2020, under Sections 377 I.P.C., Sections 17 and 5/6 of POCSO Act and 67B of the I.T. Act, registered at P.S. Bhojpur, District Moradabad.

Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that although the applicant is named in the first information report and in the statement recorded under Section 161 Cr.P.C. of the victim but in the statement under Section 164 Cr.P.C. the victim has stated in very specific terms that the applicant and co-accused did not commit any bad act on him. It is argued that even in the statement under Section 164 Cr.P.C. he has stated the reason for false implication of the applicant and the co-accused. It is argued that the medical report does not corroborate with the prosecution story and further there is no recovery of any incriminating video clip as stated in the first information report, which was alleged to have been recorded by the applicant. It is argued that the present first information report has been lodged after a delay of about 8 days from the incident for which there is no plausible explanation whatsoever. It is further argued that the applicant has no criminal history, as stated in paragraph 25 of the affidavit and is in jail since 7.12.2020.

Per contra, learned AGA opposed the prayer for bail and argued that although the mobile of the applicant was recovered but in his confessional statement he has stated that he had got the same formatted and as such, there was no recovery of any objectionable video clip. Learned AGA placed the statement recorded under Section 161 Cr.P.C. of the victim but did not deny the fact that in the statement recorded under Section 164 Cr.P.C. of the victim, he has denied any act as such being done by the applicant and co-accused and also the fact that he has stated therein that the applicant and co-accused have been falsely implicated. It is argued that although the applicant is named in the first information report and in the statement under Section 161 Cr.P.C. of the victim, the role has been assigned as such, the bail be rejected.

After having heard the learned counsel for the parties and going through the records, it is apparent that the medical report does not corroborate with the prosecution case. There was no recovery of any incriminating video clip during investigation. The victim has in specific terms stated in his statement under Section 164 Cr.P.C. that no such incident took place and the applicant has been falsely implicated.

Let the applicant- Jeeshan, 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) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.

(iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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.

(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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., may be issued and if 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 I.P.C.

(V) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) 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 and the trial court may proceed against him under Section 229-A IPC.

(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

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 bail application is allowed.

The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

The computer generated copy of such order shall be self attested by the counsel of the party concerned.

The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

(Samit Gopal,J.)

Order Date :- 6.7.2021

nd

 

 

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