Sudheer Shukla vs State Of U.P. Thru. Home Secretary ...
2022 Latest Caselaw 10227 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 14
 

 
Case :- CRIMINAL APPEAL No. - 1977 of 2021
 

 
Appellant :- Sudheer Shukla
 
Respondent :- State Of U.P. Thru. Home Secretary Lucknow And Anr.
 
Counsel for Appellant :- Ram Sahay Yadaw,Sadhu Saran Shukla
 
Counsel for Respondent :- G.A.,Nripendra Mishra
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Sri Shashank Shukla, Advocate holding brief of Sri Sadhu Saran Shukla, learned counsel for the appellant, Sri Nripendra Mishra, learned counsel for respondent No.2 and Sri Anurag Shukla, learned AGA for the State.

The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant to set aside the impugned order dated 23.11.2022, whereby the Special Judge, SC/ST Act, Unnao has rejected the bail application of the appellant moved by him in Case Crime No. 117 of 2021, under Sections 376, 506, IPC and Section 3(2)(V) of SC/ST Act, Police Station Asoha, District Unnao.

Brief facts of the case are that the first information report dated 16.7.2021 has been lodged against the appellant by the second respondent under Sections 376, 506, IPC and Section 3(2)(V) of SC/ST Act stating that the appellant on pretext of false promise of marriage made physical relations with the second respondent and after that on 22.5.2021 her parents solemnized her marriage with one Sarvesh Kumar and after that the appellant informed her husband about their love affairs then her husband returned the second respondent to her parental house and after that appellant threatened the second respondent and her brothers for dire consequences. During this period the appellant took the victim 4-5 times in a hotel and made physical relations with her.

After lodging the First Information Report statement of the victim recorded under Section 161 Cr.P.C. and 164 Cr.P.C., medical of the victim was conducted on 19.7.2021. After completing the investigation the charge sheet has been submitted against the appellant on 4.9.2021 and the appellant was arrested on 28.8.2021.

Learned counsel for the appellant submits that the appellant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that as per the statement of victim recorded under Section 164 Cr.P.C. the appellant made physical relations on the false promise of marriage and she wants to live with the appellant. It is further submitted that there is material contradiction or improvement between the statement of the victim recorded under Section 161 and 164 Cr.P.C. It is further submitted that the victim has examined herself as P.W.-1 before the trial court wherein the victim has not supported the prosecution case in her cross examination. He next submitted that no time mentioned in the FIR for committing rape. Physical relationships has been made on the pretext of false promise of marriage.

It is further submitted that there is no possibility of the appellant of fleeing away after being released on bail or tampering with the witnesses. In case the appellant is enlarged on bail, he shall not misuse the liberty of bail.

Per contra, learned A.G.A. as well as learned counsel for the opposite party no. 2 have supported the order passed by the Special Judge (SC/ST Act), 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 appellant 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 the statement of victim recorded under Section 164 Cr.P.C. the appellant made physical relations on the false promise of marriage and she wants to live with the appellant.

(b) There is material contradiction or improvement between the statement of the victim recorded under Section 161 and 164 Cr.P.C.

(c) The victim has examined herself as P.W.-1 before the trial court wherein the victim has not supported the prosecution case in her cross examination.

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, their role and involvement in the offence, their 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 criminal appeal is allowed.

In view of the above, the impugned order dated 23.11.2022 is liable to be set-aside.

Let appellant/applicant, Sudheer Shukla be released on bail in the aforesaid case crime number on her furnishing a personal bonds and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

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

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

(vi) The appellant/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 that absence of the appellant are 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.

Order Date :- 16.8.2022

Md Faisal