Allahabad High Court
Kishore vs State Of U.P. And Another on 15 July, 2021
Bench: Pradeep Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 74
Case :- CRIMINAL APPEAL No. - 3021 of 2020
Appellant :- Kishore
Respondent :- State of U.P. and Another
Counsel for Appellant :- Ashwini Kumar Srivastava
Counsel for Respondent :- G.A.
Hon'ble Pradeep Kumar Srivastava,J.
Heard learned counsel for the appellant, learned A.G.A. for the State and perused the record.
Notice sent to respondent no. 2 as per letter dated 03.03.2021 of the concerned Chief Judicial Magistrate has been served personally but none has appeared on behalf of respondent no. 2.
This criminal appeal has been filed by the appellant Kishore with a prayer to set aside the judgment and order dated 22.09.2020, passed by Special Judge SC/ST Act, Meerut rejecting the bail application of the accused-appellant, in Case Crime No. 221 of 2020, under Sections 376, 354, 323, 504, 506 I.P.C. and Section 3(2)(5) SC/ST Act, Police Station Ganga Nagar, District Meerut.
Learned counsel for the appellant has submitted that on reading of the statements of the victim recorded under Sections 161 and 164 Cr.P.C., it is clear that both sides were in consented relationship and according to the victim, the appellant made false promise of marriage and did not marry with her. They were remained in relationship for almost three years and on refusal to marry, the first information report was lodged. Submission is that the act of the appellant is not covered within the purview of rape. The victim is a married lady and she was 35 years old having two children by her husband and she anyhow wants to force the appellant for marriage with her. Several times, she gave threat that if he will not marry, she will make a false accusation and implicate him in a false case. It has also been submitted that there is no evidence of any independent witness nor there is any evidence that the accused-appellant had committed rape on her. The accused-appellant has no previous criminal history. He has been in jail since 12.09.2020. Submission is that the accused-appellant is prepared to furnish the surety and bond. The learned court below did not consider the aspect that both were in a consented relationship and it was not possible to play deception on a party to marry with a 35 years old lady. The age of the appellant is only 20 years, therefore, the learned court below has illegally rejected the bail application of the appellant and the impugned order is liable to be set aside and the appellant is entitled to be released on bail.
Learned A.G.A. has vehemently opposed the the prayer and has submitted that the impugned order has been passed by the learned court below after considering all the relevant facts and there is no illegality in the impugned order.
Considering the facts and circumstances of the case as well as submissions made by learned counsel for the parties and also the fact that the victim is aged about 35 years and she is already a married lady and a mother of two children, whereas the accused-appellant is 20 years old only. From her statement and the version of the first information report, it is clear that if at all there was any relationship, it was consented relationship. The fact that the accused-appellant make a false promise of marriage is yet to be established during trial. 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 22.09.2020, passed by Special Judge SC/ST Act, Meerut rejecting the bail application of the accused-appellant, in Case Crime No. 221 of 2020, under Sections 376, 354, 323, 504, 506 I.P.C. and Section 3(2)(5) SC/ST Act, Police Station Ganga Nagar, District Meerut, is hereby set aside.
Let the appellant namely Kishore is 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 :- 15.7.2021
sailesh
