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Nasir vs State Of U.P. on 11 November, 2019


?Court No. – 78

Case :- CRIMINAL MISC. BAIL APPLICATION No. – 47086 of 2019

Applicant :- Nasir

Opposite Party :- State of U.P.

Counsel for Applicant :- Anil Kumar Dhaka,Dinesh Kumar

Counsel for Opposite Party :- G.A.

Hon’ble Mrs. Manju Rani Chauhan,J.

Supplementary affidavit filed by learned counsel for the applicant today in the Court, is taken on record.

Heard Sri Anil Kumar Dhaka, learned counsel for the applicant, Sri Madnesh Prasad Singh, learned counsel for the State and perused the material on record.

The instant bail application has been filed on behalf of the applicant, Nasir with a prayer to release him on bail in Case Crime No. 397 of 2019, under Sections 377 IPC, Police Station- Raya, District- Mathura, during pendency of trial.

It is argued by the learned counsel for the applicant that the present F.I.R. has been lodged by the brother of victim against as many as four accused persons including the applicant with allegation that on 17.09.2019 at about 12:00 a.m. in the night, the accused persons enticed away the victim into the forest where they had committed unnatural offence with him. However, the medical report does not support the prosecution story. It is further argued that the statement of the victim has been recorded under Section 161 Cr.P.C. in which he has made allegations against all the accused persons whereas his statement under Section 164 Cr.P.C. was recorded wherein he stated that he does not know the accused persons and none of the accused persons has committed any wrong with him. He has also stated that his brother (informant) has been falsely implicated the accused persons in the present case. The applicant has no criminal history except the present case and is languishing in jail since 19.09.2019. In case, he is released on bail, he will not misuse the liberty of bail and will cooperate in the trial by all means. Lastly, it is submitted that there is no chance of applicant fleeing away from judicial process or tampering with the witnesses.

Per contra learned A.G.A. has opposed the bail prayer of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserves any indulgence. In case the applicant is released on bail they will again indulge in similar activities and will misuse the liberty of bail.

Considering the material/evidence brought on record, the submissions made by learned counsel for the parties as well as the dictum of Apex Court in the case of SectionDataram Singh vs. State of U.P. and another, reported in (2018) 3 SCC 22, let the applicant involved in aforesaid case crime be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to 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 their 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.

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

Order Date :- 11.11.2019

JK Yadav



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