Dharmendra Singh vs State Of U.P.
2019 Latest Caselaw 1333 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 6th March, 2019
 
Delivered on 15th March, 2019
 

 
Court No. - 64
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6895 of 2019
 

 
Applicant :- Dharmendra Singh
 
Opposite Party :- State Of U.P.
 
Counsel for Applicant :- Rajrshi Gupta,Dileep Kumar
 
Counsel for Opposite Party :- G.A.,Anjani Kumar Raghuvanshi
 

 
Hon'ble Mrs. Manju Rani Chauhan,J.

1. Heard Mr. Dileep Kumar, learned counsel assisted by Mr. Rajrshi Gupta, learned counsel for the applicant, Mr. Anjani Kumar Raghuvanshi, learned counsel for the informant and Mohd. Shoaib Khan, learned A.G.A. for the State.

2. Perused the material on record.

3. The present bail application has been filed by the applicant-Dharmendra Singh with a prayer to enlarge him on bail in Case Crime No. 1175 of 2018, under Sections 276 (2) (F), 376 (AB), 377 I.P.C. and Sections 5/6 POCSO Act, Police Station- Muradnagar, District Ghaziabad, during the pendency of the trial.

4. It has been argued by learned counsel for the applicant that the present first information report has been lodged on 17th August, 2018 at the instance of Smt. Deepika Singh i.e. the second wife of the applicant nominating the present applicant as the named accused. It has been alleged that the informant-Smt. Deepika Singh had remarried the applicant after being divorced from her first husband in the year 2017. She was having 11 years old daughter, namely, Kumari Era born from the wedlock of her first marriage with Ajit Singh. It has been further alleged that on 30th March, 2018, her daughter Kumari Era narrated about the mischief, which has been done by the present applicant i.e. step father of Kumari Era, which was not trusted by the informant Deepika Singh but when Kumari Era insisted about continuous misconduct done by the applicant for the last six months, the informant tried to capture the video clipping through her mobile and came to know that the applicant was indulging in sexual activities with her daughter Kumari Era.

4. Learned counsel for the applicant has then argued that the applicant after completing his education, started his own educational institution in the name and style of "Dharam Jyoti Mahavidyalaya" at his ancestral property situated in Village Taharpur Iglas at Mathura. The said institution is run and managed by Yasman Educational Society of which the applicant was the Executive Secretary/Manager of the Committee of Management of the institution. It has also been stated that in the year 2010, the applicant got constructed a residential complex in Awas Vikas Colony, Shasni Gate, City Aligarh, where the applicant used to reside with her first wife, namely, Jyoti and son Manu along with his four brothers, namely, Suresh, Ramesh, Praveen and Sanjay. Brothers of Jyoti also used to reside in the aforesaid complex, which was objected to by the applicant. The first wife of the applicant Jyoti exerted pressure upon the applicant to permit her brothers to reside in the said complex due to which the relationship between the two became strained and incompatible and ultimately they entered into divorce by mutual consent with a understanding that the aforesaid complex at Iglas, where the first wife along with her son Manu were residing, was left for Jyoti and Manu after obtaining decree of divorce on 27th April, 2017, the applicant remarried the informant Deepika Singh on 27th May, 2017 and the applicant with his second wife Deepika Singh (first informant in the present case) and her daughter Kumari Era (victim herein) started living in a rented accommodation in Lodhi Vihar Colony, City Aligarh. Subsequently, the applicant decided to come back at Iglas, where he used to reside in newly constructed house situated on his ancestral property along with his second wife Deepika and step daughter Kumari Era. After coming to know about the property at Iglas, which was left for the first wife of the applicant, namely, Jyoti and his son Manu, the informant Deepika Singh exerted pressure upon the applicant to transfer the said property in her name for which he refused and stated that the said property was left for his first wife and his son Manu. In order to satisfy the informant i.e. his second wife Deepika, he sold newly constructed house at Iglas. The sale consideration was given to his second wife Deepika. Due to stress of such allegations, the applicant suffered severe heart stroke on 27th January, 2018 and was brought to Fortis Hospital at Noida, where his heart surgery was conducted, as the efficiency of the heart of the applicant was found only upto 25%. He was discharged from the said hospital on 28th February, 2018 and he came back to a rented house at Nai Duniya Apartment, Flat No. 4, Aligarh where the informant and her daughter were residing and the informant took care of the applicant as per the medical advise as the applicant had become very weak. After some time for the property, which was left for the first wife of the applicant and his son Manu, pressure was again exerted on the applicant and due to which an agriculture plot was sold by the applicant and sale consideration of the same was given to Deepika i.e. the first informant which amounts to a total sum of Rs. 60 lacs plus Rs. 35 lacs i.e. Rs. 95 lacs from which she purchased a property at Ghaziabad in her name. Since the condition of the applicant was precarious, hence he started living with the first informant at her parental residence from where he was arrested on 16th August, 2018. Since the brothers of the applicant were annoyed of the second marriage of the applicant, only Amit i.e. Jeeja of the applicant came forward for doing pairvi on behalf of the applicant. The first informant Deepika was pressuring Amit i.e. Jeeja of the applicant to look into the matter and convince the applicant to transfer the property, which was crux of the dispute, for which the present first information report was lodged with false and frivolous allegations. The informant Deepika used to visit the jail for exerting pressure upon the applicant for transferring the property in question in her name and she also threatened Amit through mobile phone demanding Rs. 1.5 crores failing which she as well as her daughter Kumari Era would depose against the applicant. Jeeja of the applicant i.e. Amit was threatened that he should also not do pairvi on applicant's behalf. The aforesaid conversation has been recorded and the C.Ds. of the same has been annexed as Annexure-7 to the affidavit accompanying the present bail application. Several documents have been placed to show as to how the pressure has been exerted upon the applicant to transfer the property in question. The informant Deepika has also moved an application before the authorities that now the relations between the applicant and the informant and her daughter are smooth, she does not want to press the present case.

5. It has been argued by the learned counsel for the applicant that facts and circumstances of the case apparently make it clear that the applicant has been falsely implicated in the present case. 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 8th May, 2017. As such the applicant has undergone one year and eight months of incarceration.

6. Per contra, learned A.G.A. for the State as well as the learned counsel for the complainant have opposed the prayer for bail of the applicant on the ground of age of the victim but they could not show any material on the basis of which it can be said that to any offence is made out against the applicant. They could also not dispute the factual submissions as urged by the learned counsel for the applicant.

7. 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 tria0.79l 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.

8. 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/-