High Court
Case Details
Court No. - 76 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 60040 of 2022 Applicant :- Smt. Rajni Opposite Party :- State of U.P. Counsel for Applicant :- Sanjeev Mishra Gana Counsel for Opposite Party :- G.A. Hon'ble Saurabh Shyam Shamshery,J. Heard Sri Sanjeev Mishra Gana, learned counsel for applicant and Sri Markandey Singh, brief holder for State. Applicant- Smt. Rajni, has approached this Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. after rejection of her Bail Application vide order dated 01.12.2022 passed by in Case Crime No.277 of 2022 under Sections 376 R/W, 120-B I.P.C., Police Station- Nawabganj, District - Bareilly. According to prosecution story, victim was residing separately from her husband at residence of Mamta along with sisters of Mamta namely, Rajni and Neha. Accused Rajni asked victim to accompany her on 16.06.2022 at 8.00p.m. They went to meet accused Vinod Gangwar who took both to brick kiln where he raped victim. Act was witnessed by co-accused Rajni. Thereafter both returned back at home. Act of rape was video-graphed also. Thereafter, co-accused Vinod Gangwar made physical relationship with co-accused Rajni. It was also alleged that co-accused Mamta and Rajni used to run a prostitution racket. It was further alleged that accused stolen money, items of victim. Victim left the room of accused and started living at some other place. Still applicant and co-accused threaten her for dire consequence in case a complaint is made, however, victim lodged the F.I.R. Learned counsel for applicant submits that story of victim appears to be improbable. Allegations that applicant was running a prostitution racket along with other co-accused remain unsubstantiated during investigation. There is a delay of more than one month in lodging F.I.R. and delay remain unexplained. Medical evidence has also not supported the prosecution case. Learned counsel for applicant submits that applicant is behind the bar since 20.09.2022 and in case, he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
Legal Reasoning
tampering of evidence; character, behaviour, means, position and standing of accused; likelihood of offence being repeated; the frivolity in the case of prosecution; criminal antecedents of accused and a prima facie satisfaction of Court in support of charge against accused. The Court may also take note of participation or part of an unlawful assembly as well as that circumstantial evidence not being a ground to grant bail, if the evidence/ material collected establishes prima facie a complete chain of events. Parity may not be an only ground but remains a relevant factor for consideration of application for bail. (D) Over crowding of jail and gross delay in disposal of cases when undertrials are forced to remain in jail (not due to their fault) may give rise to possible situations that may justify invocation of Article 21 of Constitution, may also be considered along with other factors. (See, State Of Rajasthan, Jaipur vs. Balchand @ Baliay (AIR 1977 SC 2447 : 1978 SCR (1) 535; Gurcharan Singh vs. State (Delhi Administration), (1978) 1 SCC 118); State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21; Prasanta Kumar Sarkar vs. Ashis Chatterjee and Anr (2010)14 SCC 496; Mahipal vs. Rajesh Kumar, (2020) 2 SCC 118; Ishwarji Mali vs. State of Gujarat and another, 2022 SCC OnLine SC 55; Manno Lal Jaiswal vs. The State of U.P. and others, 2022 SCC OnLine SC 89; Ashim vs. National Investigation Agency (2022) 1 SCC 695; Ms. Y vs. State of Rajasthan and Anr :2022 SCC OnLine SC 458; Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022)3 SCC 501; and, Deepak Yadav vs. State of U.P. and Anr. (2022)8 SCC 559) In the present case, it appears that even after alleged act of rape, victim on her own will stayed with applicant at her room and that allegation of prostitution appears not to be substantiated on basis of evidence collected and that there is a delay in lodging F.I.R. i.e. period of more than one month and also considering that applicant is a lady, who is in jail since 20.09.2022, a case of bail is made out. Let the applicant-Smt. Rajni 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 shall file an undertaking to the effect that she shall not seek any adjournment or exemption from appearance on the date fixed in trial. 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 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 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 her, in accordance with law, under section 174-A I.P.C. (iv) The Trial Court may make all possible efforts/endeavour and try to conclude the trial expeditiously, preferably within a period of six months after release of applicant, if there is no other legal impediment. 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. Order Date :- 22.3.2023 P. Pandey Digitally signed by :- PUSHPENDRA PANDEY High Court of Judicature at Allahabad
Arguments
Sri Markandey Singh, brief holder for State has opposed the bail and submits that applicant along with co-accused was running a racket of prostitution. There are evidence in form of C.D.R. report that applicant was in continuous touch with co- accused who committed rape of victim around the time of occurrence. Applicant has under a conspiracy, forced victim to accompany her and co-accused took her to a brick kiln where she was raped. The delay has been explained. LAW ON BAIL - A SUMMARY (A) The basic rule may perhaps be tersely put as bail, not jail. (B) Power to grant bail under Section 439 Cr.P.C., is of wide amplitude but not an unfettered discretion, which calls for exercise in a judicious manner and not as a matter of course or in whimsical manner. (C) While passing an order on an application for grant of bail, there is no need to record elaborate details to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal. However, a Court cannot completely divorce its decision from material aspects of the case such as allegations made against accused; nature and gravity of accusation; having common object or intention; severity of punishment if allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of witnesses being influenced by accused;