Allahabad High Court
Sarvesh vs State Of U.P. on 19 May, 2021
Bench: Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 28
Case :- BAIL No. - 4921 of 2021
Applicant :- Sarvesh
Opposite Party :- State of U.P.
Counsel for Applicant :- Ramakar Shukla
Counsel for Opposite Party :- G.A.
(In residence)
Hon'ble Vikas Kunvar Srivastav,J.
The case is called out through video conferencing.
Learned counsel SriRamakar Shukla, Advocate appears through video conferencing in virtual hearing on behalf of bail-applicant.
Learned A.G.A. Sri Anirudha Kumar Singh, Advocate on behalf of State also appears through video conferencing in virtual hearing of the case. As he has received the instructions in the matter, he is ready to argue the case on the basis of case dairy and other relevant materials available on record with regard to the investigation.
The present bail application is filed on behalf of the accused-applicant-Sarvesh, who is involved in Case Crime No.348/2020, under Sections 366 and 376 of I.P.C., registered at Police Station Dostpur, District Sultanpur.
The occasion of present bail application has arisen on rejection of bail plea of applicant by learned Sessions Judge, Sultanpur vide order dated 15.03.2021.
Learned counsel for the bail-applicant submitted that admittedly the alleged victim of the case was in matrimonial co-habitation with the present accused-applicant by virtue of marriage agreement executed on 12.10.2020 by the parties to the marriage, which is made annexure no.5 to the bail-application. Learned counsel further submitted that the first information report is falsely lodged on 25.12.2021 with regard to the incident dated 19.09.2020, the date, when the victim on her own volition opted to leave her house for co-habiting with the present accused-applicant.
Learned counsel further submitted that the first information report is lodged under the inducement of some villagers with malafide intention otherwise the marital co-habitation between the victim and the present accused-applicant has already been established and recognized in family court, wherein, a case of maintenance was lodged by the victim, alleging the marriage with the present accused-applicant. Learned counsel further submitted that a compromise was entered and the maintenance case was decided in terms of settlement arrived into the compromise by grant of one time maintenance to the victim, the said order of the family court dated 08.02.2020 is made annexure no.6 to the bail-application. As such, neither the offence under Section 366 I.P.C. is made out prima facie nor any co-habitation or sexual intercourse, during the valid wedlock as married couple, amounts rape
Learned counsel further submitted that the present accused-applicant is being harassed unnecessarily and illegally on the instigation of some villagers of cunning nature, the accused-applicant is of young age, has a bright future in life and without any legal reason he is confined in jail since 27.12.2020. Learned counsel further submitted that the accused-applicant is a common man, residing in same village, not in a position of fleeing away from the order of the Court, he has no criminal antecedents nor is of robestic nature, therefore, there is no possibility of influencing any witnesses or tampering with the evidences, as the investigation has already been completed and charge sheet has been submitted, therefore, nothing can be done by the Investigation Officer now. Learned counsel further submitted that the accused-applicant is ready and willing to furnish the bail bonds and sureties bonds in accordance with the order of the Court, therefore, he should be released on bail.
On the other hand, learned A.G.A. submitted that fairly admitting that entire investigation report and the case diary with material evidences collected by the Investigating Officer is alongwith him, he has not rebutted the fact that there is a marriage agreement between the accused-applicant and the victim, executed by them being adult persons. He further has no rebuttal that in the family court, a maintenance suit was lodged by the alleged victim for maintenance from the present accused-applicant, claiming him her husband. It is also not denied that the family court took the matter as a maintenance between the husband and wife and on arriving the parties to the suit as settlement, to pay of one time maintenance, the maintenance case was decided. There is no criminal antecedents, as learned A.G.A. submits on the basis of records available with him.
Keeping into mind the valuable right of personal liberty and the fundamental principle not to disbelieve a person to be innocent unless held guilty and if he is not arraigned with the charge of an offence for which the law has put on him a reverse burden of proving his innocence as, held in the judgment of Hon'ble the Supreme Court in Dataram Singh Vs. State of U.P. and ors. reported in (2018) 3 SCC 22, I find force in the submission of learned counsel for the bail-applicant to enlarge him on bail.
Considering the facts and circumstances of the case, perusing the record, considering the nature of allegations, arguments advanced by learned counsel for the parties and looking into the complicity of the applicant-accused in the offence, the gravity of offence, severity of punishment and without expressing any opinion on the merit of the case, I find it to be a fit case for granting bail.
Let applicant (Sarvesh), involved in Case Crime No.348/2020, under Sections 366 and 376 of I.P.C., registered at Police Station Dostpur, District Sultanpur be released on bail on his furnishing personal bond of Rs.50,000/- and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-
(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 misuse 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 applicants 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.
Order Date :- 19.5.2021
Saurabh
