High Court
Case Details
Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46115 of 2021 Applicant :- Yogendra Upadhyay Opposite Party :- State of U.P. Counsel for Applicant :- Saurabh Gour,Sr. Advocate Counsel for Opposite Party :- G.A.,S.P.S. Chauhan,Sukhendra Singh Hon'ble Rahul Chaturvedi,J.
Legal Reasoning
Heard Sri A.B.L. Gaur, learned Senior Advocate assisted by Sri Sourabh Gour, learned counsel for the applicant, Sri Sukhendra Singh, learned counsel for the informant and learned A.G.A. for the State at length. The applicant Yogendra Upadhyay is father-in-law facing prosecution in Case Crime No.128 of 2016 under sections 498- A, 376, 377, 323, 504, 307 I.P.C. and 3/4 D.P. Act, Police Station Iglas, District Aligarh and is in jail since 03.09.2021. The contention raised by counsel for the applicant is that being fastened with abhorring allegation of committing rape and sodomy with her own daughter in law. It is further contended that marriage of the informant was solemnized with the son of the applicant Sunny Upadhyay on 24.02.2014 in which father of the informant spent around Rs.12,00,000/-. It seems that there was a deep-rooted discord between the husband and wife on account of certain issues. The informant made a complaint to the Chairman of Mahila Thana, Aligarh on 02.03.2021 in which there was simplicitor allegation of dowry related atrocities. Since there was no serious allegation in it, then in the second round, just after 15 days of the first complaint, on 17.03.2016, a detailed F.I.R. was lodged under sections 498-A, 376, 377, 323, 504, 506 I.P.C. and 3/4 D.P. Act against seven named accused persons including the applicant with all sorts of serious allegations and canards in it. Admittedly, the applicant is father-in-law aged about more than 60 years. It is contended by learned counsel for the applicant that initially the interest was protected by Division Bench of this Court but later on chargesheet was submitted by the police. When chargesheet was challenged by means of Crl. Misc. Application U/s. 482 Cr.P.C No. 17667 of 2016, the same was partly allowed on 16.10.2019 quashing the proceedings against the lady folk but for the rest of the applicants namely Sani Upadhyay (husband), Yogendra Upadhyay (father in law) and Devesh (brother in law) were directed to surrender before the Court concerned. The contention is that Co-ordinate Benches of this Court have enlarged Shani Upadhyay (husband) on bail in Crl. Misc. Bail Application No. 6427 of 2020 vide order dated 13.02.2020 and Devesh (brother in law) in Crl. Misc. Bail Application No. 56708 of 2019 vide order dated 09.01.2020 and the case of the applicant stands on a better footing than that of the husband and brother in law. The applicant himself is more than 60 years old. Interestingly, though the allegations are of rape and sodomy but there are no injuries to the effect that she was ever subjected to unnatural sex or rape upon her. Taking into account the fact that the husband and brother in law of the informant have been enlarged on bail and additionally there is a shifting stand on the part of the applicant, the applicant deserves to be bailed out. Sri Sukhendra Singh, learned counsel for the complainant as well as learned A.G.A. vehemently opposed the prayer for bail but could not dispute the fact that the husband and brother in law of the informant have already been enlarged on bail and the case of the applicant is of parity. Giving the benefit of parity and keeping in view the nature of the offence, evidence, complicity of the accused and submissions of learned counsel for the parties, I am of the view that the applicant has made out a case for bail. Let the applicant, Yogendra Upadhyay, 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/APPLICANTS SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE/THEY SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE WHEN THE WITNESSES IS/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/APPLICANTS SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER/THEIR COUNSEL. IN CASE OF HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIS/HER/THEIR UNDER SECTION 229-A IPC. (iii) IN CASE, THE APPLICANT/APPLICANTS MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT/APPLICANTS FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIS/HER/THEIR, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC. (iv) THE APPLICANT/APPLICANTS 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/APPLICANTS IS/ARE 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 HIS/HER/THEIR 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/APPLICANTS. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. Since the bail application has been decided under extra-ordinary circumstances, thus in the interest of justice following additional conditions are being imposed just to facilitate the applicant/applicants to be released on bail forthwith. Needless to mention that these additional conditions are imposed to cope with emergent condition-: 1. The applicant/applicants shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is/are restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored. 2. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad. 3. The computer generated copy of such order shall be self attested by the counsel of the party concerned. 4. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing. Order Date :- 4.3.2022 Madhurima Digitally signed by MADHURIMA GARG Date: 2022.03.07 15:13:01 IST Reason: Location: High Court of Judicature at Allahabad