Sanjay Singh vs State Of U.P. And Ors.
2022 Latest Caselaw 11137 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 14
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11427 of 2021
 

 
Applicant :- Sanjay Singh
 
Opposite Party :- State Of U.P. And Ors.
 
Counsel for Applicant :- Abhinav Srivastava,Rahul Srivastava
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Shamim Ahmed,J.

List revised. None appears on behalf of opposite party No. 2 despite service of notice as per the office report dated 21.03.2022, but till date neither any vakalatnama nor any counter affidavit has been filed on behalf of opposite party No. 2. It appears that opposite party No. 2 is not interested to contest the case, therefore, this Court has no option but to proceed with the matter for final hearing.

Rejoinder affidavit filed by the learned counsel for the applicant today in Court is taken on record. Thus, pleadings are complete and have been exchanged between the parties.

Heard Shri Rahul Srivastava, the learned counsel for the applicant, Shri Nirmal Kumar Pandey, the learned A.G.A. for the State and perused the record.

The applicant, Sanjay Singh, has moved the present bail application seeking bail in Case Crime No. 268 of 2020, under Sections 363, 366, 376, 342 I.P.C. read with Section 3/4 of Protection of Children From Sexual Offences Act, Police Station Jahangirganj, District Ambedkar Nagar.

Learned counsel for the applicant submits that applicant has falsely been implicated in the present case due to village rivalry and enmity. No such incident, as alleged by the prosecution, took place. The entire allegation has been made with intention to defame the image of applicant and his family members in the society.

Learned counsel for the applicant further submits that initially complainant has lodged F.I.R. under Sections 363, 366 I.P.C. by making suspicion that some unknown persons abducted her minor daughter aged about 16 years. As per the recovery memo prepared by the police, which is Annexure-3, the victim was recovered from Bawli Chauraha, Jahangirganj, Ambedkar Nagar on the information given by informer to the police, thereafter, the statement of victim was recorded under Section 161 Cr.P.C. wherein she has made allegations of rape against the applicant, but she could not disclose where she was kept by the applicant. In her statement recorded under Section 164 Cr.P.C. the victim has stated that applicant committed her rape several times in a room, thereafter brothers of victim came there, then she could knew that she was in Lucknow and her age is 16 years.

Learned counsel for the applicant further submits that there is a vast contradiction in the statement of victim recorded under Section 164 Cr.P.C. with the recovery memo prepared by the police regarding place of her recovery, as according to recovery memo prepared by the police the victim was recovered from Bawli Chauraha, Jahangirganj, Ambedkar Nagar, whereas the victim in her statement under Section 164 Cr.P.C. has stated that when her brothers came there, then she could knew that she was in Lucknow.

Learned counsel for the applicant further submits that entire prosecution story has been cooked up with malicious intention only to implicate the applicant falsely. The applicant has not taken the victim at Lucknow or anywhere else.

Learned counsel for the applicant further submits that entire allegation of rape made by the victim in her statement recorded under Sections 161 and 164 Cr.P.C. got demolished after perusal of her medical examination report, wherein doctor has opined that on examination findings are within normal limit which neither rejects nor confirms forceful intercourse and final opinion is reserved till the FSL report is received. This medical examination report was prepared on 27.08.2020 but till date no FSL report is received. Learned A.G.A. also concedes that there is no FSL report on the record.

Learned counsel for the applicant further submits in absence of any definite opinion of doctor regarding allegation of rape made by the victim against the applicant, it cannot be said that the applicant has committed any wrong act with the victim. The applicant has been falsely implicated in the present case due to ulterior motive, therefore, he may be enlarged on bail by this Court, sympathetically.

Learned counsel for the applicant further submits that the applicant is in jail since 28.08.2020 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."

Learned counsel for the applicant further submits that ratio of law applicable in above those cases is also applicable in the case of the applicant, therefore, the applicant be enlarged on bail by this Court sympathetically.

Several other submissions regarding legality and illegality of the allegations made in the F.I.R. 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. The applicant undertakes that in case he is released on bail he will not misuse the liberty of bail and will cooperate in trial. It has also been pointed out that applicant has no criminal history, which has been explained in para-27 of the affidavit filed in support of the bail application. The applicant is in jail since 28.08.2020 and that in the wake of heavy pendency of cases in the courts, there is no likelihood of any early conclusion of trial.

Learned A.G.A. opposed the prayer for bail and has submitted that applicant is involved in heinous crime, therefore, 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 the fact that there is a vast contradiction in the statement of victim recorded under Section 164 Cr.P.C. with the recovery memo prepared by the police regarding place of her recovery, as according to recovery memo prepared by the police the victim was recovered from Bawli Chauraha, Jahangirganj, Ambedkar Nagar, whereas the victim in her statement has stated that where brothers of victim came there, then she could knew that she was in Lucknow; there is no definite opinion of the doctor regarding forceful sexual relations made with the victim and final opinion was reserved after the FSL report is received but till date no FSL report is received; in absence of any definite opinion of doctor regarding allegation of rape of the victim, it cannot be said that the applicant has committed any wrong act with the victim; the victim is aged about 16 years and taking benefit of two years, either side, the victim knows consequences very well; as well as 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 case of Dataram Singh vs. State of U.P. 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, Sanjay Singh, involved in Case Crime No. 268 of 2020, under Sections 363, 366, 376, 342 I.P.C. read with Section 3/4 of Protection of Children From Sexual Offences Act, Police Station Jahangirganj, District Ambedkar Nagar, 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 :- 24.8.2022

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