High Court
Case Details
Neutral Citation No. - 2023:AHC:105513 Judgment Reserved on 10.5.2023 Delivered on 16.5.2023 Court No. - 76 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30687 of 2022 Applicant :- Jai Tiwari Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Vinay Prakash Shukla,Dharmendra Kumar Pandey,Swati Agrawal Srivastava Counsel for Opposite Party :- G.A.,Ram Jeet Mishra Hon'ble Saurabh Shyam Shamshery,J.
Legal Reasoning
accused and a prima facie satisfaction of Court in support of charge against accused. The Court may also take note of participation or part of an unlawful assembly as well as that circumstantial evidence not being a ground to grant bail, if the evidence/ material collected establishes prima facie a complete chain of events. Parity may not be an only ground but remains a relevant factor for consideration of application for bail. (D) Over crowding of jail and gross delay in disposal of cases when undertrials are forced to remain in jail (not due to their 4 of 6 fault) may give rise to possible situations that may justify invocation of Article 21 of Constitution, may also be considered along with other factors. (See, State Of Rajasthan, Jaipur vs. Balchand @ Baliay (AIR 1977 SC 2447 : 1978 SCR (1) 535; Gurcharan Singh vs. State (Delhi Administration), (1978) 1 SCC 118); State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21; Prasanta Kumar Sarkar vs. Ashis Chatterjee and Anr (2010)14 SCC 496; Mahipal vs. Rajesh Kumar, (2020) 2 SCC 118; Ishwarji Mali vs. State of Gujarat and another, 2022 SCC OnLine SC 55; Manno Lal Jaiswal vs. The State of U.P. and others, 2022 SCC OnLine SC 89; Ashim vs. National Investigation Agency (2022) 1 SCC 695; Ms. Y vs. State of Rajasthan and Anr :2022 SCC OnLine SC 458; Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022)3 SCC 501; and, Deepak Yadav vs. State of U.P. and Anr. (2022)8 SCC 559). 11. In the present case, it appears that offence of rape allegedly took place when the victim was a minor girl aged about 16 years by the applicant and the same was corroborated by her statements recorded under Sections 161 and 164 Cr.P.C. It also appears that the victim was afraid of social disgrace, therefore, has not initially told about alleged occurrence of rape to her parents, however, when the applicant put her unsolicited photographs on various WhatsApp groups and were forwarded to her father, she mustered courage and intimated about the earlier occurrence 5 of 6 of alleged rape to her parents as well as about photographs and video also. 12. From above referred facts and submissions as well as record, it transpires that victim’s unsolicited photographs and video allegedly clicked and recorded by the applicant were forwarded to various Whatts App groups and even to informant (father of victim) also. The Investigating Officer has collected C.D.R. reports of various phone numbers including used by the applicant and has observed that applicant's mobile number was used in crime, therefore, at this stage, Court cannot put such evidence under clouds of doubts. 13. Therefore, considering seriousness of the offence, nature of the evidence on record as well as that statement of the victim has not been recorded till date before learned Trial Court and that applicant is a possible threat to victim, no case of bail is made out. 14. Bail application is accordingly rejected. 15. Trial Court is directed to record the statement of victim preferably within a period of three months from today. Order Date:-16.5.2023 SB Digitally signed by :- SANDEEP BHATTACHARYA High Court of Judicature at Allahabad 6 of 6
Arguments
1. Heard Mrs. Swati Agrawal Srivastava, learned counsel for applicant, Sri Sunil Kumar Srivastava, learned A.G.A. and Sri Ram Jeet Mishra, learned counsel for informant. 2. The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No.282 of 2021, under Sections 376, 506 I.P.C. & 6 POCSO Act, as well as Section 67 I.T. Act, Police Station-Barsathi, District-Jaunpur after rejection of his Bail Application vide order dated 7.6.2022 passed by Incharge Additional Sessions Judge/Special Judge, POCSO Act, Jaunpur. 3. Informant is father of a girl aged about 19 years (a victim). It was alleged that unsolicited photographs and videos of his daughter were forwarded to his mobile phone from two mobile phones. It was further alleged that applicant, a distant relative of informant used to visit his house and has committed immoral conduct with victim and by deceiving her, has captured her unsolicited photographs and video and blackmailed her to respond to his sexual advances. 4. It was also alleged that about three years ago when informant’s daughter was a minor girl, aged about 16 years, applicant has raped her under threat of life by putting a country made pistol and has also captured unsolicited photographs and videos of victim and when his daughter refused to respond to his sexual advances, he put the said photographs and video on various Whats App groups and forwarded to the informant also. 5. Learned counsel for the applicant submitted that the alleged occurrence of rape had taken place about three years ago and no complaint was made, therefore, delay of three years remained unexplained. 6. Learned counsel further submitted that allegations that he not only clicked unsolicited photos of victim, but put it on various Whats App groups also. However, in entire investigation, even on basis of collection of CDR reports, no evidence which could connect him with the offence was on record. Nothing incriminating has been found from the applicant’s mobile phone. No alleged occurrence of rape had taken place. Applicant is languishing in jail since 17.5.2022, there is no likelihood of early disposal of trial and the applicant undertakes that if enlarged on bail, he will never misuse his liberty and will co-operate in the trial. 2 of 6 7. Learned A.G.A. and learned counsel for informant have opposed the bail application and referred contents of para nos. 21 and 23 of counter affidavit filed on behalf of State as well as part of the Case Diary being Parcha No.30 and Case Diary No.6 as well as details of CDR reports that applicant’s phone was used to send SMS and the photographs and videos to the father of the victim as well as to various WhatsApp groups also. 8. Counsel further referred certain observations of Investigating Officer as mentioned in the part of case diary as well as the CDR reports that certain SMS were also sent by the phone which was used by applicant. Unsolicited photographs of victim has also been recovered from the phone of the informant which were allegedly sent from applicant’s phone and it was also found that number of photographs were deleted from the mobile phone of the applicant. The victim remained consistent in her statements recorded under Sections 161 and 164 Cr.P.C. There are sufficient material that applicant has committed very serious offence that he not only committed an offence of rape when the victim was a minor girl but put her unsolicited photographs on various social platforms and forwarded the same to the father of victim also, therefore, bail application may be rejected. 9. In rejoinder, learned counsel for the applicant submits that in the above referred part of Case Diary, it was not mentioned that applicant’s phone was used in the crime. 10. LAW ON BAIL - A SUMMARY 3 of 6 (A) The basic rule may perhaps be tersely put as bail, not jail. (B) Power to grant bail under Section 439 Cr.P.C., is of wide amplitude but not an unfettered discretion, which calls for exercise in a judicious manner and not as a matter of course or in whimsical manner. (C) While passing an order on an application for grant of bail, there is no need to record elaborate details to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal. However, a Court cannot completely divorce its decision from material aspects of the case such as allegations made against accused; nature and gravity of accusation; having common object or intention; severity of punishment if allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of witnesses being influenced by accused; tampering of evidence; character, behaviour, means, position and standing of accused; likelihood of offence being repeated; the frivolity in the case of prosecution; criminal antecedents of