Allahabad High Court
Mithlesh Jaiswal vs State Of U.P. And Another on 2 August, 2021
Bench: Pradeep Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 74
Case :- CRIMINAL APPEAL No. - 1579 of 2021
Appellant :- Mithlesh Jaiswal
Respondent :- State of U.P. and Another
Counsel for Appellant :- Shailendra Kumar Singh
Counsel for Respondent :- G.A.,Rajesh Yadav
Hon'ble Pradeep Kumar Srivastava,J.
Heard learned counsel for the appellant, learned counsel appearing on behalf of respondent no. 2, learned A.G.A. for the State and perused the record.
This criminal appeal has been filed by the appellant Mithlesh Jaiswal with a prayer to set aside the judgment and order dated 25.02.2021, passed by Special Judge and Special Court SC/ST (P.A.) Act, Gorakhpur, in Criminal Misc. Bail Application No. 809 of 2021, arising out of Case Crime No. 25 of 2021, under Section 376 I.P.C. and Section 3(2)(5) SC/ST Act, Police Station Campierganj, District Gorakhpur.
The first information version is that the informant was married two years before and after some days in the year 2019, she came back to her parent's house and on the allurement of accused-appellant for giving her good life, she made physical relationship with him and the relationship was broken when she become pregnant and at present the accused-appellant is refusing to marry with her.
Learned counsel for the applicant has submitted that the accused-appellant has been falsely implicated in the present case. The victim is an adult lady and there is no allegation in the first information report that any rape was committed on her. On the contrary, it has been the case in the first information report that there was love affair between the accused-appellant and the victim and on the allurement of accused-appellant of giving good life, the victim continued in the relationship. She has got divorced from her husband. It has further been submitted that in her statement recorded under Section 164 Cr.P.C., she has stated the same version. It has also been submitted that considering the fact of consensual relationship, there is no question of offence under Section 376 I.P.C. being made out. The learned Special Judge has ignored this aspect and being influenced by the fact that the informant belongs to S.C. community, he has rejected the bail application of the accused-appellant. The submission of the learned counsel for the appellant is that the accused-appellant has no criminal history and the court below has illegally rejected the bail application of the appellant. Hence, the impugned order is liable to be set aside and the accused-appellant is entitled to be enlarged on bail.
Learned A.G.A. and learned counsel appearing on behalf of respondent no. 2 have vehemently opposed the the prayer and have submitted that the informant is pregnant by eight months and the proceeding for D.N.A. test is under process. The appellant by making physical relationship with the informant got her pregnant and now he is refusing to marry with her. Further submission is that the learned Special Judge has considered all the aspects of the matter and has rightly rejected the bail application of the appellant. Therefore, the appeal has got no force and is liable to be dismissed.
Considering the facts and circumstances of the case as well as submissions made by learned counsel for the parties and also the fact that per statement of the victim recorded under Section 164 Cr.P.C., she was in love with the appellant ans she continued with him for a very prolonged relationship, as such, there appears to be no possibility of rape being committed on her. Therefore, I find that the learned court below has erred in rejected the bail application. The impugned order suffers from infirmity and illegality and the same is liable to be set aside and the appeal is liable to be allowed.
Accordingly, the appeal is allowed and the impugned order dated 25.02.2021, passed by Special Judge and Special Court SC/ST (P.A.) Act, Gorakhpur is hereby set aside.
Let the appellant namelyMithlesh Jaiswal involved in aforesaid case be released on bail on his furnishing a personal bond and two sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions:-
(i) The appellant will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that appellant is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.
(ii) The appellant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The appellant will not indulge in any unlawful activities.
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 appellant to prison.
Order Date :- 2.8.2021
sailesh
