Atul Kumar Singh Alias Atul Kumar ... vs State Of U.P.
2021 Latest Caselaw 6511 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 52
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2205 of 2020
 
Applicant :- Atul Kumar Singh Alias Atul Kumar Rai
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Rajrshi Gupta,Ajay Srivastava,Dileep Kumar(Senior Adv.)
 
Counsel for Opposite Party :- G.A.,Rishi Kant Rai,Sudist Kumar
 

 
Hon'ble Om Prakash-VII,J.

This is second bail application on behalf of the applicant.

Heard S/Shri G.S. Chaturvedi and Dileep Kumar, learned Senior Advocates assisted by S/Shri Rajrshi Gupta and Ajay Kumar Srivastava, learned counsel for the applicant and Shri R.K. Rai, learned counsel for the complainant as well as Shri Vikash Sahai, learned AGA through video conferencing.

It is submitted by the learned Senior Counsel appearing for the applicant that though this is second bail application on behalf of the applicant yet there are sufficient grounds to allow the same. It is next contended that almost all prosecution witnesses have been examined, applicant has fully cooperated with the trial and cross-examination of prosecution witnesses has also been completed. While deciding the first bail application moved on behalf of the applicant this Court has specifically observed that since the prosecutrix was still to be examined, therefore, bail application moved by the applicant was not liable to be allowed at that stage. Referring to this fact, it is further submitted that since prosecutrix and other fact witnesses have been examined, application under Section 311 CrPC moved by the prosecution for re-examination of prosecution witness Satyam Prakash has been rejected, therefore, there is no occasion for further detention of the applicant in jail. It is next contended that applicant is innocent and has not committed the present offence. He has been falsely implicated in this case due to conspiracy hatched by one Angad Rai and Satyam Prakash with a view to deter the applicant for contesting the parliamentary election from Ghosi constituency. Referring to whatsapp message sent by the prosecutrix, application moved to the Inspector General of Police concerned as well as the Director General of Police, U.P. and date of lodging the F.I.R. it is further submitted that present F.I.R. was lodged in conspiracy hatched against the applicant by the aforesaid persons only to falsely implicate the applicant so that he could not contest the parliamentary election from said constituency. It is further submitted that applicant is the elected candidate of the parliamentary election from Ghosi Constituency. He was arrested and is in jail. He took oath on the basis of the order passed by this Court. Referring to the affidavits as well as the compliance affidavit annexed with the application it is next contended that on the application moved by the father of the applicant regarding the conspiracy hatched by one Angad Rai and Satyam Prakash, an enquiry was conducted by an officer of the rank of Dy. S.P. who submitted a report to the effect that present F.I.R. was lodged hatching conspiracy by Angad Rai and Satyam Prakash. Learned Senior Counsel appearing for the applicant further submitted that the report submitted by the Investigating Officer (Dy. S.P.) concerned was not accepted and again an enquiry was entrusted to S.P. (City) Varansi. Referring to the enquiry report submitted by the S.P. (City), Varanasi, annexed with the compliance affidavit, learned Senior Counsel appearing for the applicant drew the attention of Court towards the audio clip of conversation made between Angad Rai, Satyam Prakash and prosecutrix and further submitted that this audio clip came into existence prior to the F.I.R. lodged against the applicant. Aforesaid reports were submitted before the Court on the direction of this Court. While conducting the enquiry, the S.P. (City), Varanasi ensured the genuineness of the said clip by obtaining expert opinion and found the voice / sound in the said audio clip belonging to Angad Rai, Satyam Prakash and also of the prosecutrix, which were made on the mobile of Satyam Prakash and prosecutrix. It is next contended that a format of F.I.R. was supplied by Angad Rai to Satyam Prakash and prosecutrix which itself shows that before lodging the F.I.R. a conspiracy was hatched against the applicant to implicate him in the present matter falsely. Learned Senior Counsel referred to conversation made through the audio clip, emphasized mobile number said to have been used by Angad Rai, Satyam Prakash and prosecutrix and further submitted that applicant is an elected Member of Parliament from Ghosi Constituency. He is in jail in a false case. Development work of the constituency concerned is held up and due to this reason public interest is suffering. Applicant is also a reputed person. He was running a established business. Criminal cases shown as criminal history were lodged against the applicant due to political rivalry. In most of the cases applicant has been acquitted and in some of them trial is going on. It is further submitted that no charge sheet has been submitted against go-accused Anuj Rai. The Investigating Officer submitted final report. No protest petition was filed and even during trial application under Section 319 CrPC was not moved to summon him to face trial. Referring to statement of PW-7 it is also submitted that the Investigating Officer has also been examined. Effort made by the prosecutrix to transfer the case from the Court concerned was also turned down by this Court and same was also upheld by the Apex Court. It is next contended that victim has earlier withdrawn the prosecution in one case in the statement recorded under Section 164 CrPC manipulating High School Certificate showing her age as major. One F.I.R. was lodged against the prosecutrix in that case. Victim has not cooperated at any point of time to the Investigating Officer concerned. Election Petition is also pending against the applicant. F.I.R. was lodged in this matter after a considerable delay and same is the result of after thought and due consultation. New facts of the investigation done under Section 173(8) CrPC are on record which itself are sufficient to allow this second bail application. No prima facie case is made out against the applicant. At this juncture, learned Senior Counsel referred to documents annexed with the application and also the affidavits filed in the matter and prayed for bail of the applicant. It is lastly contended that applicant has not approached the Apex Court at any point of time for his bail.

On the other hand, learned counsel for the complainant as well as the learned AGA appearing for the State submitted that trial is at the verge of conclusion. Seven prosecution witnesses have been examined and all have supported the prosecution case. Audio clip said to have been collected in the matter was obtained without permission of the Court. Charge sheet had been submitted, therefore, it was mandatory to obtain permission. It is further submitted that audio clip said to have been collected by the police after commencement of trial is genuine / authentic or not shall be decided by the trial court. If applicant is enlarged on bail, there is chance that he will cause delay in disposal of trial. Since the Investigating Officer has not collected the call details of mobile of the accused applicant, plea of alibi is also not liable to be accepted. Transfer application moved by the prosecution was withdrawn itself. There is criminal history of the applicant. Applicant is the active member of Mukhtar Ansari gang. Grounds taken in the matter are not sufficient to allow the present bail application.

In rejoinder, Shri Dileep Kumar, learned Senior Advocate appearing for the applicant rebutting the submissions advanced by the learned counsel for complainant and also the learned AGA appearing for State submitted that PW-7 Investigating Officer himself in his cross-examination has admitted that prosecutrix did not provide mobile number said to have been used by her and the applicant. Therefore, the Investigating Officer could not collect the evidence in this regard. It is also submitted that call details of mobile number provided to the Investigating Officer was collected but no connection was found with the applicant. Referring to supplementary affidavit and the rejoinder affidavit it is further submitted that no delay was caused on the part of the applicant in conclusion of trial. Prosecution itself had moved an application in the month of February, 2021 for fixing a date after six months as one of the prosecution witnesses was not available. Referring to aforesaid facts, it is further argued that prosecution itself is delaying the trial. Referring to affidavit filed in support of bail application and other documents it is also submitted that neither the applicant is member of Mukhtar Ansari gang nor is associated with him in any manner. All the cases shown as criminal history were planted due to political rivalry. Fundamental rights of the applicant guaranteed under the Constitution of India are being defeated / infringed.

I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record carefully.

As mentioned above, this is second bail application on behalf of the applicant. First bail application moved by the applicant was decided by his Court vide order dated 15.11.2019, which is as under:

"1. Today, a personal affidavit of S.S.P. Varanasi has been filed by learned A.G.A. and supplementary counter affidavit has been filed on behalf of the complainant which are taken on record.

2. Heard Sri Dilip Kumar, learned Senior Advocate assisted by Sri Swetashwa Agarwal, learned counsel for the applicant, Sri Vinay Saran, learned Senior Advocate assisted by Sri Sudist Kumar, learned counsel for the complainant, Sri A.R. Chaurasia, learned Standing Counsel for the State and perused the record.

3. The pleadings between the parties have been exchanged.

4. Learned counsel for the applicant submits that the applicant is a Member of Parliament from Ghosi constituency of district Mau as a joint candidate of B.S.P. & S.P. political parties. He has defeated his rival candidate, who belongs to ruling party of the State. He submits that the present case has been lodged against the applicant by the complainant/prosecutrix on account of political influenc. He has tried to demonstrate from the record regarding the false implication of the applicant due to political motive by his rival candidate of the ruling party, who lost the election against him. The present F.I.R. was lodged by the complainant/prosecutrix after an inordinate delay on 1.5.2019 whereas the incident in question has taken place on 7.3.2018 for which there is no explanation given by the complainant/prosecutrix. He submits that as soon as the notification for Parliamentary Election was done on 20.4.2019, the applicant on 25.4.2019 filed his nomination as a joint candidate of B.S.P. and S.P. coalition for contesting the Parliamentary Election of 2019 from Ghosi constituency of district Mau U.P. Immediately thereafter on 28.4.2019, a video clip against the applicant was floated by the victim in social media for sexual exploitation etc. The last date of filing of nomination was 29.4.2019. When the applicant made his nomination as a joint candidate of B.S.P. and S.P. coalition then the applicant was being pressurized by the ruling party through his earlier companion of B.S.P., namely, Sushil Kumar, who later on had joined the ruling party to withdraw his nomination before the last date of withdrawal of nomination, i.e., 2.5.2019 but he refused to do so then he was being harassed by the ruling party to ruin the election campaign and political image of the applicant a deep rooted conspiracy was hatched by the high ups of the ruling party in collusion with the police and the complainant/prosecutrix falsely implicated the applicant in the present case. In this regard on 11.5.2019 a temporary look out circular was issued by the Bureau of immigration and Ministry of Home Affairs. He pointed out that on 1.5.2019, the complainant/prosecutrix met the D.G.P. U.P. and Chief Secretary of the State of U.P. at Lucknow raising her grievance against the applicant in pursuance of which the F.I.R. of the present case was lodged against the applicant on 1.5.2019 at 22:50 p.m. at police station Lanka, District Varanasi. On 2.5.2019, the statement of the complainant/prosecutrix under section 161 Cr.P.C. was recorded and on the same day her statement under section 164 Cr.P.C. was also recorded. On 2.5.2019, her medical report was also prepared along with pathology report and supplementary medical report was also prepared on 8.5.2019. He submits that the complainant/prosecutrix is admittedly a major girl aged about 21-22 years as is evident from the report of her ossification test conducted on 7.5.2019. He pointed out that though the allegation of rape has been levelled by the complainant/prosecutrix against the applicant but the same does not corroborate by her medical examination report as no injury was found either on internal or external part of her body. He submits that the complainant/prosecutrix was used by the rivalries of the applicant for implicating him in the present case just to malign his image before the public so that he could not contest the election but the applicant contested the election against the rival candidate of the ruling party and has won from his constituency and has been elected by thumbing vote. He submits that the complainant/prosecutrix is not an innocent lady. She is a student leader and has been in habit of implicating innocent person and black mailing them for her ulterior motive. In past also, she has implicated innocent persons and after taking money from them, the cases were dropped against them. He submits that so far as the criminal antecedents of the applicant are concerned, there appears to be only 12 cases pending against him though the complainant/prosecutrix has stated that the applicant has a criminal history of 32 cases pending against him. He submits that from a perusal of the chart filed along with personal affidavit filed today by the S.S.P. in the Court it is apparent that there were 21 cases shown against the applicant out of which in 8 cases he has been acquitted and in one case final report has been submitted and there remains only 12 cases pending against him. He further submits that there was case which was registered as case crime no. 9 of 2009 for the offence under sections 342, 386, 504, 506, 427 I.P.C. against the applicant which was lodged by one Sushil Kumar, who was the then M.L.A. and the applicant also lodged an F.I.R. against him for similar offences. It was pointed out by him that so far as case crime nos. 396 of 2011 for the offence under sections 364, 302, 120B I.P.C., police station Cantt., District Varanasi, case crime no. 397 of 2011 under sections 307, 353, 333, 338, 224, 225, 419, 120B I.P.C. and 7 C.L.A. Act, police station Cantt., District Varanasi, twice he was challaned under the Gangster Act on the basis of the said cases for which case crime no. 356 of 2011 under sections 3 (1) U.P. Gangster Act, police station Cantt., District Varanasi, case crime no. 511 of 2011 under sections 3 (1) U.P. Gangster Act, police station Cantt., District Varanasi respectively was registered against him. He submits that the cases registered as case crime nos. 396 of 2011, 397 of 2011, 401 of 2011 referred above, the applicant was not named in the F.I.R. and his name was introduced subsequently and he is on bail in the said cases. Moreover under the Gangster Act also he has been granted bail. The other cases are old and stale. So far as his non appearance before the trial court is concerned, he submits that the applicant is already confined in jail and he cannot be held responsible for delaying the trial or framing of charges in the present case as the State has acted mischievously against the applicant and not sending the proper notice to the jail authorities concerned for his appearance before the trial court. He further submitted that the letter which has been addressed to Hon'ble the Chief Justice of India sent by the complainant/victim was with respect to her grievance that the present case was being tried at Varanasi whereas the same ought to have been transferred to the Court of M.P. M.L.A. at district Allahabad. He next submitted that the S.S.P. Varanasi has addressed a letter to the complainant/prosecutrix that if she had any apprehension of her life or receiving any threatening, she may approach him so that necessary security may be provided to her but she had not appeared before the S.S.P. for the same on account of which she has not been provided any security and she is moving freely, hence he prayed that the applicant be released on bail as he is languishing in jail since 22.6.2019. He has placed reliance on the judgment of the Apex Court in the case of Maulana Mohammad Amir Rashadi vs. State of Uttar Pradesh and another reported in (2012) 2 SCC 382 that criminal antecedent cannot be the sole ground for rejecting the bail application of the accused and has drawn the attention of the Court towards para-10 of the said judgment which is quoted hereinbelow:-

"10. It is not in dispute and highlighted that the second respondent is a sitting Member of Parliamentfacing several criminal cases. It is also not in dispute that most of the cases ended in acquittal for want of proper witnesses or pending trial. As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdiction of the Court etc."

5. He has further relied upon the judgment of the Apex Court in the case of Ketan Suresh Pawar and another vs. Yuvraj Sandeepan Sawant and another reported in 2019 SCC Online SC 1103 and drawn the attention of the Court towards para-9 of the said judgment which is quoted hereinbelow:-

"9. The learned counsel for the petitioners has placed reliance on the judgment of this Court in the case of Chandrakeshwar Prasad @ Chandu Babu & Anr. vs. State of Bihar & Ors. (2016) 9 SCC 443 to contend that in the said case it was held that the High Court had erred in granting bail to the respondent accused therein without taking into consideration the overall facts otherwise having a bearing on the exercise of its discretion on the issue. In the said case it is noticed that the F.I.R. had indicated that the accused is a habitual offender and he had already been awarded two sentences of life imprisonment and also named in several criminal cases. The accused therein was also a category-A history sheeter in view of his persistent criminal antecedents. In that background in the case which was being dealt with and the bail was under consideration, he had been charged with the offence of facilitating the murder of a witness in a case in which he was being tried. In that background, having considered all aspects this Court had arrived at such conclusion. Needless to mention, in a matter SLP(Crl) No.4158/2019 relating to consideration of a bail application the facts of each case will have to be weighed on its own merits keeping in view the principles for grant of bail, while exercising the discretion available to the Court. In that background, in the instant case, for the reasons stated above the discretion as exercised by the High Court cannot be termed as erroneous."

6. Per contra, learned counsel for the complainant has vehemently opposed the arguments of learned counsel for the applicant and has submitted that the complainant/prosecutrix of the case has been sexually exploited by the applicant for his ulterior motive from time to time and further committed rape on her after calling on his flat at Varanasi and she because of the status and criminal antecedents of the applicant, could not dare to speak against him and when she came to know that the applicant was going to contest the election of Parliament then she gathered strength to highlight his illegal activities and immoral conduct before the public. He submitted that on account of fear and threatening of her life the complainant/prosecutrix also could not made effort to lodge the F.I.R. or complaint against the applicant at earlier point of time. He next submitted that the applicant is a history-sheeter and has been put in category 'A' being History-sheet No. 27A which is pending against him at police station Madhuadeeh, district Varanasi. The applicant is having a long criminal history of 32 cases. He submitted that though the applicant has alleged 12 cases against him as has been also pointed out by the S.S.P. in his personal affidavit filed today. He the two cases earlier the applicant faced trial which ended in his acquittal as the witnesses turned hostile. He submits that the fact that as on date 12 cases are pending against the applicant goes to show that the applicant does not have a good reputation in the society. He submits that if the applicant is enlarged on bail then there is every likelihood that he would indulge in tempering with the evidence and not allow the complainant/prosecutrix to appear before the trial court to depose against him. He submitted that the trial court has fixed the date for framing of charge on number of occasions but the applicant did not appear before the trial court and had avoided framing of charges against him, hence his bail application deserves to be rejected. He has relied upon a judgment of the Apex Court in the case of Mauji Ram vs. State of U.P. and another reported in 2019 LawSuit (SC) 1378 and drawn the attention of the Court towards para-15 of the said judgment which is quoted hereinbelow:-

"15. Having perused the FIR and keeping in view the antecedents of the accused persons which are brought on record by the State in their counter affidavit and further keeping in view the manner in which the offence under Section 302 IPC was committed, we are prima facie of the view that this is not a fit case for grant of bail to the accused persons (respondent No.2 herein in all the appeals). These factors were relevant while considering the bail application and, in our view, they were not taken into consideration."

7. He has further relied upon a judgment of the Apex Court in the case of Neeru Yadav vs. State of U.P. and another reported in (2014) 16 SCC 508 on the point of criminal antecedents of the accused is also a guiding factor which has to be considered by the Court while considering the bail application of the accused and has drawn the attention of the Court towards para-18 of the said judgment which is quoted hereinbelow:-

"First, we shall dwell upon the criminal antecedents. The appellant, the real victim, being the wife of the deceased, has annexed a chart relating to the criminal history of the accused. The State has filed a counter affidavit. We think it apt to refer to the cases which find place in the counter affidavit filed by the state. Be it clarified though it has been filed as a counter affidavit, it is not in oppugnation of the prayer sought in the petition. On the contrary, it is supportive of the stand put forth in the petition. It has been asseverated that the respondent no.2 is a history-sheeter and number of cases have been lodged against him.................,..

In the reply filed by the respondent no.2 contended, inter alia, that he has been acquitted in certain case. However, in the course of hearing, we have been apprised that most of the cases instituted against the respondent no.2 are still pending and some of them are under Section 302 IPC and other heinous offences."

8. He further submitted that the applicant is an elected member of Parliament and has tried to linger on the trial. The complainant/prosecutrix had also approached Hon'ble The Chief Justice of India and sent an application/representation vide speed post on 9.8.2019 raising her grievance and further praying for protection of herself and her family members and the S.S.P. has further provided her security as she apprehending some threatening from the applicant in the present case.

9. After having heard learned counsel for the parties and considering the rival submissions advanced by learned counsel for the parties, I am of the opinion that the case is fixed for framing of charge and statement of the complainant/prosecutrix is to be recorded by the trial court. Taking into account the facts and circumstances of the case in order to ensure the fair and speedy trial it would be more appropriate at this stage that the trial court would be allowed to frame charges and record the statement of the complainant/prosecutrix expeditiously.

10. Without expressing any opinion on the merits of the case and considering the submissions advanced, I find no good ground for grant of bail to the applicant Atul Kumar Singh @ Atul Kumar Rai involved in Case Crime No. 548 of 2019 under sections 420, 376, 504, 506 I.P.C., police station Lanka, District Varanasi.

11. Accordingly, the bail application of the applicant is rejected at this stage.

12. However, the trial court is directed to frame the charges against the applicant in accordance with law on the next date fixed and further record the statement of the complainant/prosecutrix expeditiously preferably within a period of two months from the date of framing of charge"

In this matter, as is evident from the record, seven prosecution witnesses have been examined and some of them are still to be examined. Genuineness / authenticity of the evidence collected under Section 173 (8) CrPC is still to be decided by the trial court. Hence, considering the entire facts and circumstances of the case, submissions of learned counsel for the parties and keeping in view the nature and gravity of offence, evidence, complicity of accused, statement of witnesses, stage of trial and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has not made out a case for bail. The second bail application moved on behalf of applicant is liable to be rejected and the same is accordingly rejected.

However, trial court is directed to conclude the trial expeditiously, preferably, on day-to-day basis. Prosecution is also directed to adduce evidence / produce witnesses without obtaining unnecessary adjournment.

The party shall file self attested computer generated copy of this order downloaded from the official website of High Court, Allahabad. The concerned Court / Authority / Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 22.6.2021

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