High Court
Case Details
Court No. - 80 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26305 of 2021 Applicant :- Ashok Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Radhey Shyam Yadav,Chandra Prakash Pandey,Vijay Kumar Kushwaha Counsel for Opposite Party :- G.A.,Hanuman Prasad Mishra Hon'ble Sanjay Kumar Pachori,J.
Legal Reasoning
After considering the facts of the present case it prima facie appears that; (a) First information report has been lodged after 24 days of the incident; (b) Till 24.5.2021 i.e. after one month of the incident, there is no whisper about the allegation of rape; (c) The victim has denied her internal examination being conducted; (d) The age of the victim is 28 years; It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with. Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed. Let applicant, Ashok Kumar be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions: (i) The applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence. (ii) The applicant shall not pressurize/intimidate the prosecution witnesses. (iii) 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 of Cr.P.C. (iv) 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 the trial court. (v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. (vi) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that absence of the applicant is deliberate or without sufficient case, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed in accordance with law. The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance of law after the release of the applicant, keeping in view the law laid down by the Supreme Court in the case of Alakh Alok Srivastava v. Union of India & Anr., AIR 2018 SC 2440, if there is no other legal impediment. It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked. 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. Order Date :- 20.1.2022 T. Sinha
Arguments
Heard Shri Chandra Prakash Pandey, learned counsel for the applicant, Shri Jitendra Kumar Jaiswal, learned A.G.A. for the State and Shri Hanuman Prasad Mishra, learned counsel for the first informant through Video Conferencing and perused the material on record. The present bail application has been filed on behalf of applicant Ashok Kumar under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 409 of 2021 for offence punishable under Sections 376, 323, 504, 506 of the Indian Penal Code, registered at Police Station Kotwali Farrukhabad, District Farrukhabad, during pendency of the trial, after rejecting the bail application of the applicant by Sessions Judge, Farrukhabad vide order dated 29.6.2021. Brief facts of the case are that the First Information Report dated 19.5.2021 has been lodged against the applicant under Sections 354, 323, 504, 506, IPC stating that the husband of the first informant was doing labour work in Delhi. The applicant was also working with her husband and they knew each other very well. On 25.4.2021 she received information that her husband has sent money from Delhi and she can receive the same from the applicant in Keshav Hotel during the period of 2.00 p.m. to 3.00 p.m. On receiving the said information, she went Keshav Hotal and reached there at about 2.15 p.m. The applicant met first informant in the gallery of hotel and took her in a room saying that apart from the money, her husband has sent some articles also. After entering in the room, applicant molested her by touching her breast and below the waist. On her crying, he slapped and abused her. Anyhow she escaped from the spot. After lodging first information report, statement of the victim under Section 161, Cr.P.C. has been recorded on 24.5.2021. Statement of the victim under Section 164, Cr.P.C. has also been recorded on 25.5.2021. Medical examination of the victim was conducted by doctor on 25.5.2021, but she denied her internal examination being conducted. The applicant was arrested on 2.6.2021. Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive after about 24 days of the incident. As per allegation of FIR as well as in the statement of the victim recorded under Section 161, Cr.P.C., there is no whisper about the allegation of rape. In her statement recorded under Section 164, Cr.P.C. on 25.5.2021, after about one month of the incident, she first time stated that the applicant entered a finger in her private part. The victim is aged about 28 years. No external injury has been found in the medical examination of the victim. It is further submitted that the husband of the victim had taken Rs. 55,000/- as loan from the applicant and when the applicant demanded money from the husband of the first informant, he has been implicated in the present case. He has next argued that the applicant has no previous criminal history and if the applicant is released on bail, he shall not misuse the liberty of bail. Per contra, learned AGA and learned counsel for the informant have supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicant and submits that the allegations involved are very serious in nature and the delay in lodging the FIR cannot be said to be fatal to the case at this juncture while considering the application of bail. But they could not point out any material to the contrary. They further submit that in case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.