Point of Law: Kidnapped and Rape -Nature of offence, evidence, complicity of accused and submissions of learned counsel for parties, court view that applicant has made out a case for bail

JUDGMENT :

1. Heard Sri Ajeet Kumar, learned counsel for the applicant as well as learned A.G.A for the State and perused the record.

2. By means of this application, the applicant who is involved in case crime no. 532 of 2018, under Sections 363, 366 and 376 IPC and Section 3/4 of the POCSO Act, Police Station-Civil Line, District-Budaun is seeking enlargement on bail during the trial. The applicant is languishing in jail since 30.07.2020.

3. Contention raised by the learned counsel for the applicant are as follows:-

(a) The deponent of the present affidavit supporting the bail application, is none other than the victim herself.

(b) The age of the girl on the date of the incident is 17+ years.

(c) She in her 164 Cr.P.C. statement clearly indicates that she was in the deep love affair with the applicant and performed the marriage in the temple.

(d) Not only this, the applicant and victim approached this Court by means of Writ-C No 26690 of 2019 (Smt. Shivani Kashyap and another Vs. State of U.P. and three others) in which, this Court by order dated 13.08.2019, the interest of the parties were protected.

(e) She candidly states that she is still interested in joining the company of her husband (the present applicant).

4. All these facts indicates that the victim was in consensual relationship with the applicant.

5. Learned A.G.A opposed the prayer for bail but could not dispute the aforesaid facts and the legal submissions as argued by the learned counsel for the applicant.

6. Keeping in view the nature of the offence, evidence, complicity of the accused and submissions of learned counsel for the parties, I am of the view that the applicant has made out a case for bail.

7. Let the applicant-Anuj Kumar Varma Alias Anuj Rastogi, 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/APPLICANTS SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE/THEY SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE WHEN THE WITNESSES IS/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/APPLICANTS SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER/THEIR COUNSEL. IN CASE OF HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIS/HER/THEIR UNDER SECTION 229-A IPC.

(iii) IN CASE, THE APPLICANT/APPLICANTS MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT/APPLICANTS FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIS/HER/THEIR, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

(iv) THE APPLICANT/APPLICANTS 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/APPLICANTS IS/ARE 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 HIS/HER/THEIR IN ACCORDANCE WITH LAW.

(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT/APPLICANTS.

8. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

9. Since the bail application has been decided under extra-ordinary circumstances, thus in the interest of justice following additional conditions are being imposed just to facilitate the applicant/applicants to be released on bail forthwith. Needless to