High Court
Case Details
Court No. - 92 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43198 of 2021 Applicant :- Kapil Opposite Party :- State of U.P. Counsel for Applicant :- Neetu Singh,Prashant Kumar,Sushil Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J.
Legal Reasoning
Heard Sri Prashant Kumar, learned counsel for the applicant, and Sri Indrajeet Yadav, learned AGA for the State through virtual mode. A counter affidavit has been filed on 06.01.2022 sworn by one Ashok Kumar, Sub-Inspector at Police Station Gulawati, Bulandshahar wherein a specific averment has been made in paragraph no. 3 that the notice of bail application in question has been served upon the victim as well as Child Welfare Committed and in this regard Annexure-C.A.-1 has also been filed. Thus, service upon them is deemed to be sufficient. This bail application purported to be under Section 439 of the Cr.P.C. has been moved for seeking bail in Case Crime No. 458 of 2021, under Sections 323, 506, 377 I.P.C. and 3/4 POCSO Act, registered at Police Station- Gulawathi, District- Bulandshahr. The bail application of the applicant has been rejected by the court below, on 27.08.2021. It is contended that the FIR was lodged by one Deepak Chaudhari before police station Gulawathi, Bulandshahr being FIR No. 0458 on 16.06.2021 at 14:34 hours u/s 323, 506 IPC with regard to the commission of the offence on 14.06.2022 with an allegation that on 14.06.2021 the complainant's nephew at 6 PM had gone to bring certain articles from the shop and in between the main accused Vikrant whose name find place in the FIR, took away his nephew to nearby agriculture field near a temple where Vikrant forced his nephew to consume liquor and thereafter, beating was administered upon the victim and he was threatened that he will be killed and according to the complainant, bad act has been committed with his nephew. The learned counsel for the applicant has argued that the applicant is not named in the FIR and further he has been falsely implicated in the present case particularly in view of the fact that he has no connection with the said allegation. Learned counsel for the applicant has further argued while drawing the attention of the Court towards page no. 36 of the bail application being the statement the victim recorded u/s 161 Cr.P.C. so as to contend that the applicant along with the one Vikrant has taken the victim in a motor cycle and his grand father being Dharmendra Singh was at the relevant point of time coming and the victim called him but he could not see him and the applicant along with co-accused has forcibly intoxicated him and committed bad act with him. Learned counsel for the applicant has next drawn the attention of the court towards the counter affidavit dated 06.01.2022 sworn by Ashok Kumar, which is the mazid bayan of the witness Dharmendra Singh (Page 13) so as to contend that the motor cycle was driven by the main accused Vikrant and the along with him the victim was sitting however, no reference has been made to the fact that the applicant was present there. He further drawn the attention of the court toward paragraph no. 27 of the bail application so as to contend that the applicant does not possess any criminal history. He next argued that the co- accused being Vikrant who is named in the FIR, has been enlarged on bail by this Court on 23.12.2021 in Crl. Misc. Bail Application No. 44921 of 2021, the bail order is quoted hereinbelow:- "Heard learned counsel for the applicant, Mr. P.K. Bhardwaj, learned AGA for the State and perused the record. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant seeking enlargement on bail, in Case Crime No.458 of 2021, under Sections 377, 323, 506 I.P.C. and Section 3/4 POCSO Act, Police Station Gulawati, District Bulandshahr. Learned counsel for the applicant has submitted that the applicant is a bright student and has been falsely implicated in the instant case. He has further submitted that the complainant lodged the F.I.R. on 16.06.2021 alleging that the incident took place on 14.06.2021 and further it is stated that his nephew was taken in the field near a temple and he was made to drink liquor and he was beaten by the applicant. He has further stated that the complainant has doubt that some unnatural act might have been done with his nephew. The statement under Section 164 Cr.P.C. was recorded later on, which is evident from the case diary of Investigating Officer dated 05.07.2021. The victim has stated that unnatural sex was committed to him on 14.06.2021. It is worth to be noted that the F.I.R. was lodged on 16.06.2021, whereas, the cause of action arose on 14.06.2021. The Act of unnatural sex was not disclosed in the F.I.R., is creating doubt. The applicant is otherwise stated to have no criminal history and is in jail since 18.06.2021. Lastly, it is contended by the learned counsel for applicant that the applicant shall not abscond and will fully cooperate in the proceedings. The applicant shall not tamper with the evidence nor influence the witnesses in any manner. On the other hand, learned A.G.A. opposed the prayer for bail, but could not dispute the aforesaid facts. Upon hearing learned counsel for the parties, perusal of record and considering the complicity of accused, severity of punishment as well as totality of facts and circumstances, at this stage, without commenting on the merits of the case, I find it a fit case for bail. Let the applicant, namely, Vikrant, who is involved in aforementioned 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 subject to following conditions. Further, before issuing the release order, the sureties be verified. (i) 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. (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 IPC. (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., 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 IPC. (iv) The applicant shall remain present, in person, before the Trial Court on dates fixed (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 him in accordance with law. for- (v) The Trial Court may make all possible efforts/endeavour and try to conclude the trial as expeditiously as possible. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses." The learned counsel for the applicant therefore submits that the applicant is also entitled to be enlarged on bail as the entire allegation is against the main accused Vikrant. The learned counsel for the applicant has further invited the attention of the court towards the fact that the applicant is unnecessary languishing in jail since 16.08.2021. Countering the said submission, learned AGA for the State has opposed the bail while arguing that the applicant has committed the offence and the name of the applicant came into surface in the statement of the victim recorded u/s 161 Cr.P.C. however, he could not dispute that in the statement of the witness being Dharmendra Singh, who happens to be the grand father of the victim, it has been specifically stated that the applicant was not sitting in the motor cycle in question on which the main accused Vikrant was sitting and just behind him the victim was sitting. He further not disputed the fact that the applicant does not possess any criminal history and the main accused has been enlarged on bail. Considering the submission so advanced by the learned counsel for the parties, on the question of bail, prima facie this Court finds that this is a fit case for grant of bail particularly in view of the fact that the main accused being Vikrant has already been enlarged on bail and the in the statement of the witness being Dharmendra Singh it has been stated that the applicant did not accompany the victim and it was the victim who was sitting in the motor cycle of the main accused and the applicant does not have any criminal history and looking into the nature of the acquisition, the evidence collected by the I.O. in support of the charge, gravity of offence, nature and severity of the punishment in the case of conviction, complicity of accused and all attending circumstances. Courts have taken notice of the overcrowding of jails during the current pandemic situation (Ref.: Suo Motu Writ Petition (c) No. 1/2020, Contagion of COVID 19 Virus in prisons before the Supreme Court of India). These circumstances shall also be factored in while considering bail applications on behalf of accused persons. In the light of the aforenoted discussion and without making any observations on the merits of the case, the bail application is allowed. Let the applicant Kapil involved in 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 prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial. (ii). The applicant shall cooperate in the trial sincerely without seeking any adjournment. (iii). The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail. (iv). 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 to any police officer or tamper with the evidence. (v). In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. (vi). Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted. Taking into consideration that Covid-19 is continuing and due to which certified copy would not be possible to be obtained by the applicant, therefore, if a copy of this order downloaded from the official website of Allahabad High Court and self attested by the counsel for the applicant is placed before the Court, the same would be entertained. Order Date :- 31.1.2022 Nisha