Sanjai Gautam vs State Of U.P. And 3 Ors.
2022 Latest Caselaw 10714 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 14
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10109 of 2021
 

 
Applicant :- Sanjai Gautam
 
Opposite Party :- State Of U.P. And 3 Ors.
 
Counsel for Applicant :- Anil Kumar Awasthi,Govind Yadav
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Shamim Ahmed,J.

As per office report dated 6.10.2021 notice has been served personally upon opposite party no.2 but today when the case is taken up in the revised list no one appeared on behalf of opposite party no.2 to press this bail application , therefore, this Court has no option except to decide the case finally.

Heard Shri Govind Yadav, learned counsel for the applicant, Shri Kunwar Veer Bhan Singh, learned A.G.A. for the State and perused the record.

The applicant, Sanjai Gautam, has moved the present bail application seeking bail in Case Crime No. 581 of 2019, under Sections 363/366/376 I.P.C. and Section 3/4 of Protection of Children From Sexual Offences Act, Police Station Kakori, District Lucknow.

Learned counsel for the applicant submits that the applicant is innocent and has falsely been implicated in the present case due to village party bandi and enmity. No such incident as alleged by the prosecution took place. The entire prosecution story is lodged with the intention to defame the image of the applicant and his entire family in the society.

Learned counsel for the applicant further submits that the first information report was lodged under sections 363, 366 IPC and after the victim was recovered, her statement was recorded under section 161 Cr.P.C., wherein she stated that applicant enticed her away to Delhi and kept her in a rented room and made physical relation with her. The father of the applicant brought the applicant and victim from Delhi. When both (victim and applicant) were going to Lucknow Kutchery for court marriage, on the way the police caught her hold and applicant fled away.

Learned counsel for the applicant further submits that the statement of the victim was recorded under section 164 Cr.P.C. wherein she almost repeated the same version of her statement recorded under section 161 Cr.P.C.

High lighting the aforesaid, learned counsel for the applicant vehemently submitted that the victim went with applicant on her own sweet will to Delhi and lived with him in a rented room but she did not raise any alarm. There appears consent.

Learned counsel for the applicant further submits that the allegation made by the victim regarding physical relation with her by the applicant in her statements recorded under sections 161 and 164 Cr.P.C. got demolished after perusal of the medical report of the victim as the doctor opined therein that there is no external or internal injury seen on the person of the victim and as per the vaginal smear slide report no spermatozoa and gonococci seen and the pregnancy test is also negative. Thus the medical report does not support the prosecution case and as per her own statement the age of the victim is 15 years.

Learned counsel for the applicant further submits that the applicant is in jail since 23.3.2020 and has by now done a substantial period of incarceration. In support of his argument, he has placed reliance of Hon'ble Apex Court judgment in the case of Kamal Vs. State of Haryana, 2004 (13) SCC 526 and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under :-

"2. This is a case in which the appellant has been convicted u/s 304-B of the India Penal Code and sentenced to imprisonment for 7 years. It appears that so far the appellant has undergone imprisonment for about 2 years and four months. The High Court declined to grant bail pending disposal of the appeal before it. We are of the view that the bail should have been granted by the High Court, especially having regard to the fact that the appellant has already served a substantial period of the sentence. In the circumstances, we direct that the bail be granted to the appellant on conditions as may be imposed by the District and Sessions Judge, Faridabad."

Learned counsel for the applicant has also placed reliance of Hon'ble Apex Court judgment in the case of Takht Singh Vs. State of Madhya Pradesh, 2001 (10) SCC 463, and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under:-

"2. The appellants have been convicted under Section 302/149, Indian Penal Code by the learned Sessions Judge and have been sentenced to imprisonment for life. Against the said conviction and sentence their appeal to the High Court is pending. Before the High Court application for suspension of sentence and bail was filed but the High Court rejected that prayer indicating therein that the applicants can renew their prayer for bail after one year. After the expiry of one year the second application was filed but the same has been rejected by the impugned order. It is submitted that the appellants are already in jail for over 3 years and 3 months. There is no possibility of early hearing of the appeal in the High Court. In the aforesaid circumstances the applicants be released on bail to the satisfaction of the learned Chief Judicial Magistrate, Sehore. The appeal is disposed of accordingly."

Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that the accused is not having any criminal history and he is in jail since 23-03-2020 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

Learned A.G.A. while opposing the prayer for bail of applicant submitted that the applicant has committed heinous crime, hence his bail application may be rejected .

After perusing the record in the light of the submissions made at the Bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also the absence of any convincing material to indicate the possibility of tampering with the evidence, considering that as the doctor opined in the medical report of the victim that there is no injury seen overall the body of the victim, as per the vaginal smear slide report no spermatozoa and gonococci seen, the pregnancy test is negative, thus the medical report does not support the prosecution case and further considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the cases of Kamal Vs. State of Haryana (supra), Takht Singh Vs. State of Madhya Pradesh(supra) and Dataram Singh vs. State of UP and another, reported in (2018) 3 SCC 22, this Court is of the view that the applicant may be enlarged on bail.

The prayer for bail is granted. The application is allowed.

Let the applicant, Sanjai Gautam involved in Case Crime No. 581 of 2019, under Sections 363/366/376 I.P.C. and Section 3/4 Protection of Children From Sexual Offences Act, Police Station Kakori, District Lucknow, be enlarged on bail on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned on the following conditions :-

(1) The applicant will not make any attempt to tamper with the prosecution evidence in any manner whatsoever.

(2) The applicant will personally appear on each and every date fixed in the court below and his personal presence shall not be exempted unless the court itself deems it fit to do so in the interest of justice.

(3) The applicant shall cooperate in the trial sincerely without seeking any adjournment.

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

(5) In case, the applicant misuses the liberty of bail 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.

(6) 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.

(7) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad or certified copy issued from the Registry of the High Court, Allahabad.

(8) 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.

It may be observed that in the event of any breach of the aforesaid conditions, the court below shall be at liberty to proceed for the cancellation of applicant's bail.

It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merit of the case.

Order Date :- 22.8.2022

GSY