Dharmpal vs State Of U.P. And 3 Others
2022 Latest Caselaw 1567 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 55970 of 2021
 

 
Applicant :- Dharmpal
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Umendra Kumar Yadav
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Supplementary affidavit filed by the learned counsel for the applicant today which is taken on record.

Heard Shri Umendra Kumar Yadav, learned counsel for the applicant and learned A.G.A. for the State and perused the material on record. However, despite service of notice upon the first informant, none has appeared on behalf of the first informant.

The present bail application has been filed on behalf of the applicant Dharmpal under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 936 of 2020 for offence punishable under Sections 363, 376 of the Indian Penal Code and Sections 3/4 Protection of Children from Sexual Offices Act registered at Police Station Puwayan District Shahjahanpur during pendency of the trial, after rejecting the bail application of the applicant by the Additional Sessions Judge/ Special Judge POCSO Act, Court No. 8, Shahjahanpur vide order dated 24.03.2021.

Brief facts of the case are that the First Information Report dated 23.11.2020 at 22;56 hours has been lodged against the applicant and four other named persons by the brother of the victim on the basis of an application moved under Section 156 (3) Cr.P.C. stating therein that on 23.11.2021 co-accused Man Singh and his wife, Laxmi came to his house saying that they would arrange to get marriage of daughter with co-accused, Dharampal (brother-in-law) solemnized with his son. After this, engagement as well as ring ceremony were performed and the date of marriage was fixed as o6.03.2020. Meanwhile, co-accused Man Singh apprised the first informant that the marriage of his brother would not be performed unless marriage of sister of the first informant had not been performed with the applicant. Hearing this, first informant shocked because his sister was minor at that time. First informant revealed that his sister is minor and when she will became major, her marriage will be performed. On 05.07.2020, applicant and other four named persons came by two motorcycles armed with country made pistols in their hands and forcibly abducted sister of the first informant aged about 15 years and they took away ornaments and Rs. 28, 000/-. On 25.07.2020 at 12.00 noon, co-accused Man Singh his wife Laxmi again forcibly entered into the house of the first informant using abusive/ filthy language and threatened to annihilate, if he would make complain.

After lodging the first information report, statement of the victim under 161 Cr.P.C. was recorded on 03.12.2020. Medical examination of the victim was also conducted on 03.12.2020. Statement of victim under Section 164 Cr.P.C was recorded on 14.12.2020. After recording the statements of prosecution witnesses, charge sheet has been filed against the applicant on 13.01.2021 by the Investigating Officer, who, however, exonerated four other named persons. The applicant was arrested on 12.01.2021.

Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that as per School Certificate, age of victim is 14 years and six months at the time of incident. It is further submitted that as Radio-logical Examination dated 03.12.2021, age of victim is 19 years as on 03.12.2021. It is further submitted that the victim has not supported the prosecution case in her statements recorded under Section 161 and 164 Cr.P.C. wherein she stated that her brother wanted Rs. five lacs from the applicant for solemnizing her marriage which applicant showed his inability to pay as a result of which, he had beaten her badly, as such she had gone with the applicant on her own free will and she has not been abducted.

He has next argued that the applicant has no criminal history to his credit. If the applicant is released on bail, he shall not misuse the liberty of bail. The applicant is not convicted in cognizable offence by any court.

Per contra, learned AGA has supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicant and submits that the allegations involved are very serious in nature and the delay in lodging the FIR cannot be said to be fatal to the case at this juncture while considering the application of bail. But he could not point out any material to the contrary. He further submits that in case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.

After considering the facts of the present case it prima facie appears that;

(a) as per School Certificate, age of victim is 14 years and six months at the time of incident while as per Radio-logical Examination, age of the victim is 19 years at the time of incident;

(b) victim has not supported the prosecution case in her statements recorded under sections 161 and 164 Cr.P.C., it would not be appropriate to discuss the same at this stage.

(c) On the basis of similar set of allegation, Investigation Officer exonerated four other named persons.

It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.

Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.

Let applicant, Dharmpal be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

(i) The applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.

(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.

(iii) 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 of Cr.P.C.

(iv) 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 the trial court.

(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.

(vi) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. 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 in accordance with law.

The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the applicant, if there is no other legal impediment.

It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led, unaffected by anything said in this order.

The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.

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 :- 27.4.2022

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