Shankar v. Party

2. Heard Sri Praveen Kumar Tripathi, learned counsel for the applicant and Sri Devendra Nath Mishra, learned counsel for the State and perused the material on record.

3. Counter affidavit of the State dated 18.04.2024 and rejoinder affidavit to the same dated 05.08.2024 have already been filed which are on record.

4. Vide order dated 09.06.2023 notice was issued to the opposite party no.2 / informant. As per the office report dated 04.09.2023 notice has been served on the opposite party no.2 through heir (wife). Despite service of notice, no one appears on behalf of the opposite party no.2.

5. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Shankar, seeking enlargement on bail during trial in connection with Session Case No. 578 of 2021, under Sections 376 I.P.C. and Section 3/4 POCSO Act, Police Station Derapur, District Kanpur Dehat.

6. The present case has been instituted on the basis of a complaint / application moved under Section 156 (3) Cr.P.C. dated 19.04.2021 by Naresh Chandra against the applicant alleging therein that his daughter having date of birth 01.07.2006 used to prepare puri in functions. One day she went to a guest house for it where she suffered stomach ache and the applicant who had set-up a tandoor told her that he does work of exorcist and 2 BAIL No. 25974 of 2023 she may come to his place for appropriate remedy. On 05.03.2020 at about 5 pm she went to the place of the applicant where he was sitting along with other persons and when they went he took her inside a room and gave her some intoxicating substance and committed rape upon her and clicked her photographs and on threat to make it viral used to call her regularly and commit rape upon her. On 20.03.2021 he started threatening the victim and his family members. The complainant then went to the Police Station Sikandara for loding a report where he was told to go to Police Station Derapur where he went but his report was not lodged. He then sent an application through registered post on 31.03.2021 to the Superintendent of Police, Kanpur Dehat on which also no action was taken. He has moved an application under Section 156 (3) Cr.P.C. with the prayer that appropriate directions be issued for lodging of first information report and its investigation.

7. The said application was directed to be treated as complaint by the court concerned and the statement of the complainant under Section 200 Cr.P.C. and that of the victim under Section 202 Cr.P.C. and further the statement of Brijbhan under Section 202 Cr.P.C. were recorded.

8. Vide order dated 28.10.2021 passed by the Additional District & Sessions Judge, Court No.13 / Special Judge (POCSO Act), Ramabai Nagar (Kanpur Dehat), the applicant was then summoned for offence under Sections 376 I.P.C. and Section 3/4 POCSO Act.

9. Learned counsel for the applicant submitted that the applicant has been falsely implicated in the present case. It is submitted that there is no video or audio clip in possession of the applicant which has been recovered. It is further submitted that the application under Section 156 (3) Cr.P.C. has been moved after a delay of about 01 year & 01 month from the date of the alleged offence. While placing rejoinder affidavit it is submitted that the applicant had filed a petition under section 9 of the Hindu Marriage Act against the victim numbered as Case No. 559 of 2020 before the Principal Judge, Family Court, Kanpur Dehat but since the applicant was arrested and was sent to jail the same has now been dismissed. It is submitted that the victim is the wife of the applicant. It is submitted that the complaint has been filed with malafide intentions. The applicant has no criminal history as stated in para 18 of the affidavit and is in jail since 27.03.2023. 3 BAIL No. 25974 of 2023

10. Per contra, learned counsel for the State opposed the prayer for bail.

11. After having heard learned counsel for the parties and perusing the record, it is evident that the application under Section 156 (3) Cr.P.C. has been moved after a delay of about 01 year & 01 month of the alleged incident. The applicant had filed an application under section 9 of the Hindu Marriage Act against the victim which is stated to have been dismissed since he has been arrested. There is no plausible explanation regarding the delay in moving of the said application.

12. Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.

13. Let the applicant- Shankar, 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever. (ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever. (iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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. (iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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., may be issued and if 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 I.P.C. (v) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) 4 BAIL No. 25974 of 2023 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 and the trial court may proceed against him under Section 229-A IPC. (vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

14. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.

15. The bail application is allowed.

16. Pending application (s), if any, shall stand disposed of. September 9, 2025 AS Rathore (Samit Gopal,J.) ABHISHEK SINGH RATHOR High Court of Judicature at Allahabad

2. Heard Sri Praveen Kumar Tripathi, learned counsel for the applicant and Sri Devendra Nath Mishra, learned counsel for the State and perused the material on record.

3. Counter affidavit of the State dated 18.04.2024 and rejoinder affidavit to the same dated 05.08.2024 have already been filed which are on record.

4. Vide order dated 09.06.2023 notice was issued to the opposite party no.2 / informant. As per the office report dated 04.09.2023 notice has been served on the opposite party no.2 through heir (wife). Despite service of notice, no one appears on behalf of the opposite party no.2.

5. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Shankar, seeking enlargement on bail during trial in connection with Session Case No. 578 of 2021, under Sections 376 I.P.C. and Section 3/4 POCSO Act, Police Station Derapur, District Kanpur Dehat.

6. The present case has been instituted on the basis of a complaint / application moved under Section 156 (3) Cr.P.C. dated 19.04.2021 by Naresh Chandra against the applicant alleging therein that his daughter having date of birth 01.07.2006 used to prepare puri in functions. One day she went to a guest house for it where she suffered stomach ache and the applicant who had set-up a tandoor told her that he does work of exorcist and 2 BAIL No. 25974 of 2023 she may come to his place for appropriate remedy. On 05.03.2020 at about 5 pm she went to the place of the applicant where he was sitting along with other persons and when they went he took her inside a room and gave her some intoxicating substance and committed rape upon her and clicked her photographs and on threat to make it viral used to call her regularly and commit rape upon her. On 20.03.2021 he started threatening the victim and his family members. The complainant then went to the Police Station Sikandara for loding a report where he was told to go to Police Station Derapur where he went but his report was not lodged. He then sent an application through registered post on 31.03.2021 to the Superintendent of Police, Kanpur Dehat on which also no action was taken. He has moved an application under Section 156 (3) Cr.P.C. with the prayer that appropriate directions be issued for lodging of first information report and its investigation.

7. The said application was directed to be treated as complaint by the court concerned and the statement of the complainant under Section 200 Cr.P.C. and that of the victim under Section 202 Cr.P.C. and further the statement of Brijbhan under Section 202 Cr.P.C. were recorded.

8. Vide order dated 28.10.2021 passed by the Additional District & Sessions Judge, Court No.13 / Special Judge (POCSO Act), Ramabai Nagar (Kanpur Dehat), the applicant was then summoned for offence under Sections 376 I.P.C. and Section 3/4 POCSO Act.

9. Learned counsel for the applicant submitted that the applicant has been falsely implicated in the present case. It is submitted that there is no video or audio clip in possession of the applicant which has been recovered. It is further submitted that the application under Section 156 (3) Cr.P.C. has been moved after a delay of about 01 year & 01 month from the date of the alleged offence. While placing rejoinder affidavit it is submitted that the applicant had filed a petition under section 9 of the Hindu Marriage Act against the victim numbered as Case No. 559 of 2020 before the Principal Judge, Family Court, Kanpur Dehat but since the applicant was arrested and was sent to jail the same has now been dismissed. It is submitted that the victim is the wife of the applicant. It is submitted that the complaint has been filed with malafide intentions. The applicant has no criminal history as stated in para 18 of the affidavit and is in jail since 27.03.2023. 3 BAIL No. 25974 of 2023

10. Per contra, learned counsel for the State opposed the prayer for bail.

11. After having heard learned counsel for the parties and perusing the record, it is evident that the application under Section 156 (3) Cr.P.C. has been moved after a delay of about 01 year & 01 month of the alleged incident. The applicant had filed an application under section 9 of the Hindu Marriage Act against the victim which is stated to have been dismissed since he has been arrested. There is no plausible explanation regarding the delay in moving of the said application.

12. Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.

13. Let the applicant- Shankar, 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever. (ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever. (iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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. (iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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., may be issued and if 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 I.P.C. (v) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) 4 BAIL No. 25974 of 2023 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 and the trial court may proceed against him under Section 229-A IPC. (vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

14. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.

15. The bail application is allowed.

16. Pending application (s), if any, shall stand disposed of. September 9, 2025 AS Rathore (Samit Gopal,J.) ABHISHEK SINGH RATHOR High Court of Judicature at Allahabad