High Court
Case Details
Court No. - 71 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 55809 of 2021 Applicant :- Harikesh Nishad Opposite Party :- State of U.P. Counsel for Applicant :- R.K. Shahi Counsel for Opposite Party :- G.A.,Anjani Kumar Singh,Chandan Singh Hon'ble Samit Gopal,J.
Legal Reasoning
Heard Sri R.K. Shahi, learned counsel for the applicant, Sri Chandan Singh, learned counsel for the first informant and Sri Pankaj Mishra, learned counsel for the State and perused the material on record. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant-Harikesh Nishad, seeking enlargement on bail during trial in connection with Case Crime No.240 of 2021, u/s 376, 506, 386 IPC and Section 67 (A) of the I.T. Act, Police Station Gauri Bazar, District Deoria. The FIR of the present case was lodged on 8.8.2021 by the prosecutrix against the applicant alleging therein that about 3 years back the applicant on the threat of a country-made pistol, committed rape upon her and made a video and captured some photographs of the act. He used to threaten her of making the same viral. He demanded Rs.3 lakh from her which was given by her. Her husband is working abroad. On 21.5.2021, her husband came back. On the said day, marriage of her daughter was to be solemnized after which the applicant again made an attempt to rape her which was resisted by her then the applicant made a demand of Rs.3,75,000/- from her and threatened her of making the said video viral. He sent some photographs and video on the mobile of her son and a message for demand of money. He threatened her also. The FIR has thus been lodged. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is further argued that the incident of rape is about 3 years old. There is no complaint or any action taken by the prosecutrix earlier with regards to the incident of rape being committed on her. After about 3 years, she has lodged the present FIR just in order to falsely implicate and harass the applicant. It is further argued that the victim is aged about 35 years and married lady having children. The applicant while working in Abudhabi had transferred money to the account of the first informant, annexure no.4 being the customer receipt of some transactions have been placed before the Court. The applicant subsequently demanded the said money back and then present FIR has been lodged. The present case is a case of consent. The husband of the first informant was working abroad. She was living in the village with her children. The demand of money was made by the applicant which he had given after which the FIR has been lodged. It is argued that in so far as the photographs and video are concerned, the applicant did not make them viral. It has also been pointed out that the applicant is not having any criminal history as stated in para 17 of the affidavit. The applicant is in jail since 8.8.2021. Per contra learned counsel for the first informant and learned counsel for the State opposed the prayer for bail and argued that there was a message of demand of money by the applicant. The applicant has recorded objectionable video and photographs of the prosecutrix which has been recovered during investigation. There is allegation of rape against the applicant, as such the prayer for bail be rejected. After hearing the counsel for the parties and perusing the record, it is apparent that the incident of rape as alleged is said to have taken place around three years prior to lodging of the FIR. There are receipts showing transfer of money in the account of the first informant by the applicant. Her husband was living abroad. The victim is aged about 35 years and married lady having children. Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail. Let the applicant-Harikesh Nishad, 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever. ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever. (iii) 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. (iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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 I.P.C. (v) 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 him in accordance with law and the trial court may proceed against him under Section 229- A IPC. (vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison. The bail application is allowed. (Samit Gopal, J.) Order Date :- 13.4.2022 Gaurav Digitally signed by GAURAV KULSHRESTHA Date: 2022.04.13 17:47:26 IST Reason: Location: High Court of Judicature at Allahabad