Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in

Applicant :- Durgesh Kumar And 2 Others Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko Counsel for Applicant :- Brihaspati Mani Pathak,Abhisek Kumar Dixit,Arpit Chaudhary,Dileep Kumar Yadav,Jay Prakash Singh,Satyendra Kumar Tiwari,Sunil Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Manish Mathur,J.

1. Heard learned counsel for applicants, learned Additional Government Advocate appearing on behalf of State and perused the record.

2. This second bail application has been filed with regard to Case Crime No. 84 of 2007 under Sections 363 & 366 IPC, P.S. Khandasa, District Ayodhya. First bail application no. 12220 of 2024 was dismissed as not pressed vide order dated 26.11.2024 granting liberty to file afresh.

3. As per contents of FIR, the applicants alongwith co-accused Jai Kumar is said to have enticed away the daughter of informant on 28.02.2007.

4. It is submitted that applicants have been falsely implicated in the charges levelled against them. It is submitted that applicants' name was removed from the charge-sheet whereafter they were summoned for trial under Section 319 Cr.P.C. which was challenged in application under Section 482 Cr.P.C. bearing no. 3371 of 2007 in which interim protection was granted vide order dated 08.01.2008 but was subsequently dismissed in default of appearance on 13.07.2010. It is submitted that applicants having no knowledge of the same were thereafter taken into custody on the basis of non-bailable warrant being issued by Trial Court. The applicants are under incarceration since 30.09.2024 and their previous criminal history have already been explained.

5. Learned counsel for the appellants argued that it is a matter of consenting party. As per medical examination age of the girl was found 18 years, although in the FIR her age was stated 16 years five months. It was further argued that the prosecutrix in her statement under Section 164 Cr.P.C. has stated that she left her house in the company of the accused Jai Kumar on her own free will and no rape was committed with her and she was pregnant with cohabitation of Jai Kumar. Learned counsel further argued that when Police has recovered her, under the pressure of her parents she had given statement in court against her statement under Section 164 Cr.P.C.

6. Learned AGA opposed the prayer of bail saying that in her on oath statement in the court, the prosecutrix had corroborated the prosecution case.

7. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :- "21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty." "27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."

8. Upon consideration of submissions advanced by learned counsel for parties, prima facie, subject to evidence being led in trial, at this stage it appears that entire gist of allegation is levelled against co-accused Jai Kumar who has already been enlarged on bail by this Court in Criminal Appeal No. 2303 of 2008. There does not appear to be any allegations levelled against the applicants who are under incarceration since 30.09.2024 with previous criminal history have already been explained.

9. Considering the submissions of learned counsel for the parties, nature of accusation and severity of punishment in case of conviction, nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment and considering larger mandate of the Article 21 of the Constitution of India and, without expressing any view on the merits of the case, I find it to be a fit case of bail.

10. Let applicants, Durgesh Kumar, Rakesh Pandey and Chandra Mool involved in the aforesaid case crime be released on bail on their 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 applicants shall file an undertaking to the effect that they 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 applicants shall remain present before the trial court on each date fixed, either personally or through their counsel. In case of their absence, without sufficient cause, the trial court may proceed against them under Section 229-A of the Indian Penal Code. (iii) In case, the applicants 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 them, in accordance with law, under Section 174-A of the Indian Penal Code. (iv) The applicants 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 applicants 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 them in accordance with law. Order Date :- 25.4.2025 Satish

Applicant :- Durgesh Kumar And 2 Others Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko Counsel for Applicant :- Brihaspati Mani Pathak,Abhisek Kumar Dixit,Arpit Chaudhary,Dileep Kumar Yadav,Jay Prakash Singh,Satyendra Kumar Tiwari,Sunil Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Manish Mathur,J.

1. Heard learned counsel for applicants, learned Additional Government Advocate appearing on behalf of State and perused the record.

2. This second bail application has been filed with regard to Case Crime No. 84 of 2007 under Sections 363 & 366 IPC, P.S. Khandasa, District Ayodhya. First bail application no. 12220 of 2024 was dismissed as not pressed vide order dated 26.11.2024 granting liberty to file afresh.

3. As per contents of FIR, the applicants alongwith co-accused Jai Kumar is said to have enticed away the daughter of informant on 28.02.2007.

4. It is submitted that applicants have been falsely implicated in the charges levelled against them. It is submitted that applicants' name was removed from the charge-sheet whereafter they were summoned for trial under Section 319 Cr.P.C. which was challenged in application under Section 482 Cr.P.C. bearing no. 3371 of 2007 in which interim protection was granted vide order dated 08.01.2008 but was subsequently dismissed in default of appearance on 13.07.2010. It is submitted that applicants having no knowledge of the same were thereafter taken into custody on the basis of non-bailable warrant being issued by Trial Court. The applicants are under incarceration since 30.09.2024 and their previous criminal history have already been explained.

5. Learned counsel for the appellants argued that it is a matter of consenting party. As per medical examination age of the girl was found 18 years, although in the FIR her age was stated 16 years five months. It was further argued that the prosecutrix in her statement under Section 164 Cr.P.C. has stated that she left her house in the company of the accused Jai Kumar on her own free will and no rape was committed with her and she was pregnant with cohabitation of Jai Kumar. Learned counsel further argued that when Police has recovered her, under the pressure of her parents she had given statement in court against her statement under Section 164 Cr.P.C.

6. Learned AGA opposed the prayer of bail saying that in her on oath statement in the court, the prosecutrix had corroborated the prosecution case.

7. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :- "21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty." "27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."

8. Upon consideration of submissions advanced by learned counsel for parties, prima facie, subject to evidence being led in trial, at this stage it appears that entire gist of allegation is levelled against co-accused Jai Kumar who has already been enlarged on bail by this Court in Criminal Appeal No. 2303 of 2008. There does not appear to be any allegations levelled against the applicants who are under incarceration since 30.09.2024 with previous criminal history have already been explained.

9. Considering the submissions of learned counsel for the parties, nature of accusation and severity of punishment in case of conviction, nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment and considering larger mandate of the Article 21 of the Constitution of India and, without expressing any view on the merits of the case, I find it to be a fit case of bail.

10. Let applicants, Durgesh Kumar, Rakesh Pandey and Chandra Mool involved in the aforesaid case crime be released on bail on their 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 applicants shall file an undertaking to the effect that they 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 applicants shall remain present before the trial court on each date fixed, either personally or through their counsel. In case of their absence, without sufficient cause, the trial court may proceed against them under Section 229-A of the Indian Penal Code. (iii) In case, the applicants 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 them, in accordance with law, under Section 174-A of the Indian Penal Code. (iv) The applicants 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 applicants 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 them in accordance with law. Order Date :- 25.4.2025 Satish