Gaurav Kumar Rastogi vs State Of U.P. And Another
2022 Latest Caselaw 19278 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 65
 

 
Case :- CRIMINAL APPEAL No. - 5726 of 2022
 

 
Appellant :- Gaurav Kumar Rastogi
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Ajay Singh,Hitesh Kumar Mishra,Vikrant Gupta
 
Counsel for Respondent :- G.A.,Vivek Kumar Yadav
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Vikrant Gupta, learned counsel for the appellant, Sri Vivek Kumar Yadav, learned counsel for the respondent no. 2 and Shri Ravindra Singh, learned A.G.A. 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 Gaurav Kumar Rastogi to set aside the impugned order dated 07.07.2022 whereby the Special Judge (SC/ST Act), Gautam Buddh Nagar has rejected the bail application No. 3427 of 2022 of the appellant moved by him in Case Crime No. 234 of 2022, under Sections 376, 506 I.P.C. and Section 3(2)(v), of SC/ST Act, Police Station- Phase-3, District- Gautam Buddh Nagar.

Brief facts of the case are that the first information report dated 16.05.2022 was lodged against the appellant and mother and sister of the appellant stating that victim aged about 29 years and was doing service in Motion Pictures Pvt. Ltd., the appellant was also working there and met with the victim and after talking with each other, the appellant made friendship with the victim and proposed to marry her. The family members of the appellant also agreed to marry with the victim as assured by the appellant and the family members of the appellant. Due to this reason, the appellant and the victim were living in live-in relation for 4 years. After that the appellant refused to marry her and all the family members of the appellant also objected to the appellant to marry with the victim and other allegations were made against the family members, and the appellant made physical relations with the victim for four years.

After lodging the first information report, statement of the victim under Section 161 Cr.P.C. was recorded on 17.05.2022. Medical examination of the victim was also conducted on 17.05.2022. Statement of the victim under Section 164 Cr.P.C. was recorded on 20.05.2022. After recording the statements of the other prosecution witnesses, charge sheet had been submitted against the appellant on 15.07.2022. The appellant was arrested on 09.06.2022.

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 allegation of the first information report as well as statement of the victim recorded under Section 161 and 164 of Cr.P.C., the appellant made physical relation with the victim when she was living in live-in relationship on the pretext of false promise of marriage for 4 years in an independent Flat. The consent of the victim is not immediate result of false promise of marriage.

It is further submitted that the appellant is languishing in jail since 09.06.2022. The appellant has no criminal history.

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 respondent no. 2 have supported the order passed by the Special Judge and vehemently opposed the prayer for grant of bail to the applicant. Learned counsel for the respondent no. 2 submits that the appellant made physical relations on the pretext of false promise of marriage after that he denied to marry with the victim and solemnized marriage with another girl. 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) The victim was 29 years old at the time of lodging of the F.I.R. and the appellant was 34 years old;

(b) The appellant made physical relations with the victim when she was living in live-in relationship on the pretext of false promise of marriage for 4 years in independent Flat;

(c) Consent of the victim is not immediate result of false promise of marriage;

(d) The appellant is languishing in jail since 09.06.2022;

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 criminal appeal is allowed and impugned order dated 07.07.2022 is set aside.

Let appellant/applicant, Gaurav Kumar Rastogi 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 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/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 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 :- 1.12.2022

Ishan