Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in
Case Details
Court No. - 71 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32119 of 2022 Applicant :- Gendalal Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Zafar Abbas Counsel for Opposite Party :- G.A.,Javed Khan Hon'ble Manish Mathur,J. 1. No-one has appeared on behalf of informant despite power having been filed on his behalf.
Legal Reasoning
7. Considering the submissions advanced by learned counsel for the parties and upon perusal of the material on record, prima facie, and subject to further evidence being led in trial, it appears that there is certain contradiction in statements of prosecutrix under Section 161 and 164 Cr.P.C. The F.I.R. as well as statements of prosecutrix clearly alleged rape by applicant 2-3 months prior to lodging of F.I.R. whereas the ultra sound report indicates foetus of 22 weeks. DNA report also does not support the allegations made against applicant who is in jail since 17.02.2022 with only charge sheet having been filed. As such, without expressing any opinion on the merits of case, this Court finds, the applicant is entitled to be released on bail in this case. 8. Accordingly bail application is allowed. 9. Let applicant Gendalal, involved in the aforesaid case crime be released on bail on his 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 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 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. Order Date :- 15.11.2022 kvg/- Digitally signed by GIREESAN KV Date: 2022.11.15 19:28:54 IST Reason: Location: High Court of Judicature at Allahabad
Arguments
1A. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State and perused the record. 2. This first bail application has been filed with regard to Case Crime No.35 of 2022 under Sections 376, 506 I.P.C. and 5/6 Protection of Children from Sexual Offences Act, P.S. Hazratnagar Gadi, District Sambhal. 3. As per contents of first information report, the applicant allegedly committed rape upon daughter of informant about 2-3 months prior to lodging of F.I.R. 4. Learned counsel for applicant submits that applicant has been falsely implicated in the charges levelled against him only to coerce him to marry the prosecutrix. It is submitted that prosecutrix herself in her statement under Section 161 Cr.P.C. has indicated her age as 18 years although the same is in variance with statement of prosecutrix under Section 164 Cr.P.C. in which she has indicated her age as 16 years. It is submitted that as per the statement of doctor concerned, the prosecutix was found pregnant with foetus of 22 weeks upon ultra sound having been done. Attention has been drawn to DNA test report filed along with counter affidavit of learned Additional Government Advocate to submit that the said report clearly indicates that the applicant is not the biological father of the child. As such, it is submitted that story of false implication is clearly made out by the aforesaid report as well as medical report of the prosecutrix. 5. Learned Additional Government Advocate appearing on behalf of State has opposed the bail application with submission that as per School Certificate, date of birth of prosecutrix is 05.07.2007 and as such her consent being a minor in inconsequential. It is submitted that the prosecutrix in her statements under Section 161 and 164 Cr.P.C. has clearly supported the allegations made in the F.I.R. 6. 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."