Bholu Ahirwar v. State of U.P. and
Case Details
Neutral Citation No. - 2023:AHC:162878 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 27219 of 2023 Applicant :- Nakul Ahirwar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Yogendra Mishra Counsel for Opposite Party :- G.A.,Shailendra Singh,Tanisha Jahangir Monir Hon'ble Rajeev Misra,J.
Legal Reasoning
Heard Mr. Yogendra Mishra, the learned counsel for applicant and the learned A.G.A. for state. Prused the record. This application for bail has been filed by applicant Nakul Ahirwar seeking his enlargement on bail in Case Crime No. 101 of 2023, under sections 363, 120-B, 354C, 376-D and 506 IPC and 4(2) of POCSO Act, Police Station- Mauranipur, District Jhansi, during the pendency of trial. As per office report dated 9.8.2023, notice has been served upon first informant/opposite party-2. The names of Ms. Tanisha Jahagir Monir and Shailendra Singh are duly published in the cause list, as counsel for opposite parties but none has appeared to oppose this application for bail, even in revised call. At the very outset, learned counsel for applicant submits that co- accused Bholu Ahirwar has already been enlarged on bail by this Court vide order dated 18.7.2023, passed in Criminal Misc. Bail Application No. 27586 of 2023 (Bholu Ahirwar Vs. State of U.P. and 3 Others). For ready reference, the order dated 18.7.2023 is reproduced herein under:. "Heard learned counsel for the applicant; Sri Shailendra Singh, learned counsel for the informant; learned AGA for the State and perused the material placed on record. The instant bail application has been filed on behalf of the applicant, Bholu Ahirwar, with a prayer to release him on bail in Case Crime No. 101 of 2023, under Sections 363, 120-B, 354-C, 506, 452, 376-D IPC and Section 4(2) of POCSO Act, Police Station Mauranipur, District- Jhansi, during pendency of trial. There are allegations against the applicant of abduction of a minor, commission of offence of rape, threatening, voyeurism and penetrative sexual assault after entering into her house. Learned counsel for the applicant has submitted that from the statement of the victim under Section 164 Cr.P.C., it is clear that she had gone to the railway station with the applicant and she boarded the train and went to Delhi. After talking to T.T.E. she came back to Mauranipur station. Thereafter she met her parents. She has alleged that prior to the alleged incident, applicant and co-accused committed the offence of rape against her. Learned counsel for the applicant has submitted that with regard to the earlier commission of alleged offence of rape, no FIR was lodged against the applicant or co-accused. She refused to get herself medically examined. The applicant has been falsely implicated in this case. He has no criminal history to his credit and is languishing in jail since 6.3.2023. In case, the applicant is released on bail, he will not misuse the liberty of bail. Per contra learned A.G.A. has opposed the prayer for bail of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserves any indulgence. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail. Having considered the submissions of the parties noted above, finding force in the submissions made by the learned counsel for the applicant; keeping in view uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under-trial having fundamental right to speedy; larger mandate of the Article 21 of the Constitution of India, considering the dictum of Apex Court in the case of Satendra Kumar Antil Vs. C.B.I. & Another, passed in S.L.P.(Crl.) No. 5191 of 2021, judgement dated 11.7.2022 and considering 5-6 times overcrowding in jails over and above their capacity by under trials and without expressing any opinion on the merits of the case, let the applicant involved in the aforesaid 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 that :- (i) The applicant shall not tamper with the evidence or threaten the witnesses. (ii) 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. (iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code. (iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail 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. (v) 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. In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail. Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted. " It is then contended that as per statements of the prosecutrix recorded under section 161/164 Cr.P.C., the only allegation that has emerged against applicant is that applicant is alleged to have made the obscene video of prosecutrix. However, the charge sheet has already been submitted against applicant and co-accused on 7.4.2023 but the applicant has not been charge sheeted under any provision of I.T. Act inasmuch as no recovery of obscene video was made by Investigating Officer. It is next contended that there is no such distinguishing feature on the basis of which case of present applicant can be distinguished from aforesaid co-accused. As such, case of present applicant is similar and identical to aforesaid co-accused. He, therefore, contends that in view of above and for the facts and reasons mentioned in the order dated 18.7.2023, applicant is also liable to be enlarged on bail on the ground of parity. Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 6.3.2023. As such, he has undergone more than 5 months of incarceration. It is lastly contended that Police report in terms of Section 173(2) Cr.P.C has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. He, therefore contends that applicant is liable to be enlarged on bail. In case applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. Per contra, the learned A.G.A. has opposed the prayer for bail. However, he could not dislodge the factual and legal submissions urged by learned counsel for applicant with reference to the record at this stage. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant, accusation made coupled with the fact that co-accused Bholu Ahirwar, has already been enlarged on bail by this Court vide order dated 18.7.2023, there is no such distinguishing feature on the basis of which case of present applicant could be so distinguished from aforesaid co-accused so as to deny him bail, applicant has not been charge-sheeted under any provision of I.T. Act, the police report in terms of Section 173(2) has already been submitted, as such, entire evidence sought to be relied upon by the prosecution against applicant stands crystalized, yet the learned A.G.A. could not point out any such circumstance from the record, necessitating the custodial arrest of applicant during pendency of trial, period of incarceration undergone, the clean antecedents of applcant, inasmuch as he has no criminal history to his credit except the present one, but without making any comment on the merits of the case, applicant has made out a case for bail. Accordingly, the bail application is Allowed. Let the applicant Nakul Ahirwar, 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 SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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. (ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC. (iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC. (iv) 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) 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 THE HIM/HER IN ACCORDANCE WITH LAW. (v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above. Order Date :- 11.8.2023 Arshad Digitally signed by :- ARSHAD MAHMOOD High Court of Judicature at Allahabad