Ali Zamin, J.
1. As per office report dated 11.08.2022, notice has been served through heir upon opposite party no.2 but no one appears upon her.
2. Heard learned counsel for the applicant, Sri Vinay Prakash Sahu learned A.G.A. for the State and perused the material on record.
3. The present bail application has been filed by the applicant with a prayer to enlarge him on bail in Case Crime No.440 of 2021, under Section 376 I.P.C. and Section 3/4 of POCSO Act read with Section 3(2)(5) SC/ST Act, P.S. Campierganj, District Gorakhpur.
4. Learned counsel for the applicant submits that as per F.I.R. version on 30.11.2021 at about 6:30 p.m. victim aged about 14 years went towards field, at that time applicant finding her alone molested her, when mother and brother went to search her then he tried to flee away leaving the victim but they caught him and took him at the police station. He further submits that in statement under Section 161 Cr.P.C., the victim has reiterated the F.I.R. version. The victim has refused to conduct her medical examination and before the doctor she has also stated that no misdeed was committed upon her. In statement under Section 164 Cr.P.C., the victim has stated that applicant attempted to commit rape upon her. There is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and, in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail. It is next contended that there no previous criminal history of the applicant and is languishing in jail since 30.11.2021.
5. Per contra, learned A.G.A. opposed the bail prayer of the applicant and submits that at the time of incident she was 13 years old and in statement under Section 164 Cr.P.C., the victim has levelled allegation of rape against the applicant, therefore, the applicant is not entitled for bail.
6. Considering the facts and circumstances of the case as well as submissions advanced by learned counsel for the parties, nature of allegation against the applicant as well as F.I.R. thereafter in statement under Section 164 Cr.P.C. levelling of allegation for attempting to commit rape, without expressing any opinion on merit of the case, the applicant is entitled for bail, let the applicant- Amit Sharma 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 will not tamper with the evidence and will not pressurize/intimidate the prosecution witnesses and will cooperate with the trial. The applicant 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.
