Rupak Gupta vs State Of U.P.
2019 Latest Caselaw 1320 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 7th March, 2019
 
Delivered on 15th March, 2019
 

 
Court No. - 64
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9937 of 2019
 

 
Applicant :- Rupak Gupta
 
Opposite Party :- State Of U.P.
 
Counsel for Applicant :- Dileep Kumar,Love Lesh Kumar Verma
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mrs. Manju Rani Chauhan,J.

1. Heard Mr. Dilip Kumar, Advocate assisted by Mr. Lovelesh Kumar Verma, learned counsel for the applicant and Sri Om Prakash Mishra, learned A.G.A. for the State.

Perused the material on record.

2. The present bail application has been filed by the applicant-Rupak Gupta with a prayer to enlarge him on bail in Case Crime No. 508 of 2018, under Sections 376, 504 I.P.C., Sections 4 POCSO Act, and 3/4 Dowry Prohibition Act, Police Station-Kotwali Nagar, District Banda, during the pendency of the trial.

3. It has been argued by learned counsel for the applicant that the present first information report has been lodged on 30th July, 2018 for the incident dated 27th November, 2017 alleging therein that for an earlier incident dated 4th August, 2017 wherein the applicant Rupak Gupta, after forcing the prosecutrix, namely, Akanchha to consume some intoxicating substance, captured some objectionable photographs and sexually assaulted her, a first information report was lodged on 4th August, 2017 at Police Station Kotwali Nagar, District Banda, which was registered as Case Crime No. 475 of 2017, under Sections 376 (2) (I), 328, 506 I.P.C. and Section 4 POCSO Act. In the said case, the applicant was arrested and on the request of the applicant himself and his family members, the prosecutrix made her statement on 24th August, 2017 under Section 164 Cr.P.C. in which she had stated that she had passed her intermediate examination and she wanted to marry the applicant but since the father of the applicant was not ready for the same, hence the first information report was lodged by the father of the prosecutrix to exert pressure upon the applicant's father for their marriage. She had further stated that the applicant had not committed any rape upon her. On the request of the parents of the applicant as well as on the promise of the applicant to marry her, the statement was given by the prosecutrix in favour of the applicant after which, he was released from jail. After being released from jail, the applicant was engaged with prosecutrix on 30th September, 2017 and for the marriage, the prosecutrix was taken by the applicant on permission of her parents to purchase articles of marriage on 28th November, 2018 and after returning from the market, the applicant took the prosecutrix at his house, where the applicant has established physical relation with her. When the said incident was told by the prosecutrix to her parents, they went to meet the parents of the applicant requesting them to solemnize the marriage between the two for which demand of dowry was raised by the parents of the applicant. Therefore, the present first information report has been lodged.

4. It has been next argued by the learned counsel for the applicant that earlier the prosecutrix wanted to marry the applicant for which the parents of the applicant were forcing him to marry the prosecutrix and the applicant expressed his inability to marry the prosecutrix as he was having affair with one Deepti, hence the earlier first information report was lodged with false and frivolous allegations, wherein the statement of the prosecutrix was recorded under Section 164 Cr.P.C., On the basis of the statement given by the prosecutrix, final report was submitted by the Investigating Officer before the trial court and the trial court expunged the case vide order dated 16th September, 2017. Since the parents of the applicant were forcing him to marry the prosecutrix, their engagement ceremony was performed. All such types of pressure were exerted upon the applicant by the prosecutrix as well as her parents so that the applicant may perform marriage with her. The applicant being harassed due to earlier first information report lodged by the father of the prosecutrix with false and frivolous allegations, he performed his marriage at Arya Samaj Krishna Nagar Prayag on 30th May, 2018 with one Deepti as he was having an affair with her and their marriage was also registered. Coming to know about the said marriage, the family of the applicants as well as that of the prosecution started harassment of the couple threatening them to be faced with dire consequences. Hence, an application has been moved by the wife of the applicant i.e. Deepti before the Superintendent of Police, Banda for their protection. Deepti along with the applicant filed Writ-C No. 21210 of 2018 (Sm. Deepti Gupta And Another vs. State of U.P. & 5 Others) with a prayer for protection as they were being harassed by the family members of the prosecutrix as well as her in-laws i.e. the parents of the applicant, in which vide order dated 13th June, 2018 notices were issued to Kedar Prasad Gupta i.e. the father of the applicant, Gopal Prasad Gupta i.e. the father of the wife of the applicant, namely, Deepti Gupta and Kamal Kishor Gupta i.e. the father of the prosecutrix Akachha. After coming to know of the notice being issued, the present first information report was lodged on 30th July, 2018 after a delay of nearly eight months from the date of alleged incident, which took place on 28th November, 2017. The father of the applicant, namely, Kedar Prasad Gupta has also exerted pressure upon the applicant to marry the prosecutrix Akanchha by disowning the applicant. The mother of the applicant was also hospitalized in order to exert pressure upon the applicant to marry the prosecutrix. The present first information report has been lodged by the prosecutrix after delay of eight months from the date of incident. There is nothing in the medical of the prosecutrix to corroborate with the incident. As per the medical examination report, the age of the prosecutrix is 18 years. There is nothing to show that the applicant who has already married Deepti Gupta, had ever committed any offence of sexual assault on prosecutrix Akanchha with whom his parents were ready for marriage and exerted pressure upon the applicant to marry her. No offence has been committed by the applicant. The applicant has no criminal antecedents to his credit except the present one. It is next contended that there is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail. The applicant is in jail since 4th September, 2018. As such the applicant has undergone more than six months of incarceration.

5. Per contra learned A.G.A. has opposed the bail prayer of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserves any indulgence. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail. However, the learned A.G.A. Could not dispute the factual submissions as urged by the learned counsel for the applicant.

6. The Apex Court in the case of Sanjay Chandra Vs. CBI, (2012) 1 SCC 40 has held that 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 can be required to ensure that an accused person will stand his trial when called upon. Seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor : The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.

7. Considering the facts and circumstances of the case as well as submissions made by learned counsel for the parties and also perusing the material on record, without expressing any opinion on merit of the case, let the applicant involved in aforesaid case crime be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions:-

(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.

(Manju Rani Chauhan, J.)

Order Date :- 15.3.2019

Sushil/-