Narendra Kumar vs State Of U.P. Thru. Prin. Secy. ...
2022 Latest Caselaw 11228 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 15
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6428 of 2022
 

 
Applicant :- Narendra Kumar
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Civil Secrt. Lko.
 
Counsel for Applicant :- Narvind Kumar Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Sri Narvind Kumar Singh, learned counsel for the applicant and Sri Hari Shankar Bajpai, learned A.G.A. for the State and perused the material on record.

The present bail application has been filed on behalf of applicant Narendra Kumar under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 24 of 2021, for offence punishable under Sections 363, 366 of the Indian Penal Code, registered at Police Station- Pali, District- Hardoi, during pendency of the trial.

Brief facts of the present case are that the first information report dated 14.01.2021 has been lodged against the applicant and three named persons by the father of the victim stating therein that on 07.01.2021 at about 08.00 P.M. the applicant and three other persons came to his house and enticed away his minor daughter aged about 14 years in a four wheeler.

After lodging of the first information report, statement of the victim was recorded under Section 161 of Cr.P.C. on 08.01.2021; medical examination of the victim was conducted on 09.03.2021; statement of the victim was recorded under Section 164 Cr.P.C. on 15.03.2021; and second statement of the victim was recorded under Section 161 of Cr.P.C. on 16.03.2021. After completion of the investigation, the charge sheet has been submitted against the applicants under Sections 363 and 366 of the I.P.C. and against the co-accused Satish under Sections 363, 366, 376 of I.P.C. and Section 3/4 of POCSO Act. The applicant was surrendered before the trial Court on 07.05.2022.

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 the applicant is real brother-in-law (Bahnoi) of co-accused Satish. It is further submitted that there is material contradiction and improvement in the allegation of the first information report as well as statement of the victim recorded under Sections 161 and 164 of Cr.P.C. and second statement of the victim recorded under Section 161 of Cr.P.C. It is further contended that the victim has not supported the prosecution version in her statement recorded under Section 161 of Cr.P.C. and stated that she left her house on her own free and sweet will and she has love affair with the co-accused Satish, and had solemnized marriage with him in Arya Samaj Temple and has been living together as husband and wife, as her parents wanted to marry her somewhere else and that is why, she went away. It is further submitted that as per ossification test report, the age of the victim is 17 years old.

It has also been submitted that co-accused, Surendra and Bablu have already been enlarged on bail by the Coordinate Bench of this Court vide orders dated 08.06.2021 in Bail Nos. 5089 of 2021, 5095 of 2021 respectively and the applicant is also entitled to be enlarged on bail on the ground of parity. It is next contended that there is no other criminal antecedent to his credit. It is next submitted that there is also no possibility of the applicant either fleeing away from the judicial process or tampering with the witnesses. The applicant, who is languishing in jail since 07.05.2022, undertakes that he will not misuse the liberty, if granted. It has also been pointed out that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

Per contra, learned A.G.A. has supported the order passed by the court below 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 F.I.R. cannot be said to be fatal to the case at this juncture while considering the application of bail. But they would 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) Applicant is real brother-in-law (Bahnoi) of co-accused Satish;

(b) As per ossification test report, the age of the victim is 17 years old.

(c) There is material contradiction and improvement in the allegation of the first information report as well as statement of the victim recorded under Sections 161 and 164 of Cr.P.C. and second statement of the victim recorded under Section 161 of Cr.P.C., it would not be appropriate to state about the same at this stage.

(d) Co-accused, Surendra and Bablu have already been enlarged on bail by the Coordinate Bench of this Court.

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, Narendra Kumar be released on bail in the aforesaid case crime number on her 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 that 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/endeavor 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 along-with 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 :- 25.8.2022

Ishan