High Court
Case Details
Court No. - 71 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 37674 of 2022 Applicant :- Diwakar Sharma Opposite Party :- State of U.P. Counsel for Applicant :- Manu Sharma,Dinesh Kumar Pandey Counsel for Opposite Party :- G.A. Hon'ble Manish Mathur,J.
Legal Reasoning
1. 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.369 of 2022 under Section 376 I.P.C., P.S. Cantt., District Gorakhpur. 3. As per contents of first information report, the applicant and the informant were close friends and used to work in the same establishment but even subsequently after the applicant worked in a different establishment, the parties are said to have fallen in love and continued their relations as such. It has been alleged that the parties had engaged in sexual relations as well since the informant was under an assumption that they would get married and the F.I.R. was lodged only upon gaining knowledge that the applicant had subsequently contracted marriage elsewhere. 4. Learned counsel for applicant submits that applicant has been falsely implicated in the charges levelled against him and that the applicant as well as informant were in a consensual relationship even prior to any promise of marriage and as such the ingredients of Section 375 I.P.C. are not fulfilled. It is submitted that the distinction between breach of promise and intention to deceive are quite apparent in the present case even upon a reading of the F.I.R. and the statements of alleged victim recorded under Sections 161 and 164 Cr.P.C. wherein there is no allegation that there was any promise on part of applicant to marry the informant prior to establishment of sexual relationship. Learned counsel has placed reliance on the decision of Hon'ble the Supreme Court in Sonu v. State of Uttar Pradesh and others reported in AIR 2021 SC 1405 to submit that the allegations made in the F.I.R. could be true only if the promise of marriage had been a false promise, given in bad faith and with no intention of being adhered to at the time when it was given. It is submitted that since the said essential ingredients are missing in the present case, no offence as such is made out against applicant. 5. Learned Additional Government Advocate appearing on behalf of State has opposed the bail application with submission that the allegations made in the F.IR. are duly corroborated and supported by the statements of victim recorded under Sections 161 and 164 Cr.P.C. clearly indicating a false promise of marriage having been made by applicant. 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." 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 from a reading of the F.I.R. that the parties were in a consensual relationship prior to any promise of marriage having been made by the applicant, the statements of victim under Sections 161 and 164 Cr.P.C. also prima facie do not dispel the aforesaid observations, 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 Diwakar Sharma, 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 :- 21.9.2022 kvg/- Digitally signed by GIREESAN KV Date: 2022.09.22 10:50:54 IST Reason: Location: High Court of Judicature at Allahabad