Krishna Joshi vs State Of U.P. And Another
2022 Latest Caselaw 19279 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 65
 

 
Case :- CRIMINAL APPEAL No. - 5407 of 2022
 

 
Appellant :- Krishna Joshi
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Harsh Vardhan Gupta,Aditya Gupta
 
Counsel for Respondent :- G.A.,Puneet Kumar Shukla
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Aditya Gupta, learned counsel for the appellant, Sri Puneet Kumar Shukla, learned counsel for the respondent no. 2 and Shri Rajesh Kumar Sachan, 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 Krishna Joshi to set aside the impugned order dated 21.07.2022 whereby the Special Judge (SC/ST Act), Moradabad has rejected the bail application No. 2770 of 2022 of the appellant moved by him in Case Crime No. 394 of 2022, under Sections 376, 313, 506 I.P.C. and Section 3(2)(v), of SC/ST Act, Police Station- Civil Lines District- Moradabad.

Brief facts of the case are that the first information report dated 25.05.2022 was lodged by the victim stating that the appellant used to visit the house of the first informant as her brother Raj Kumar is friend of the appellant and during this period victim and appellant became close to each other and they developed love affair and the appellant proposed to marry her. On 12.09.2021, when she was alone in house at about 01:00 P.M., the appellant came to the house of the first informant and made physical relationship without her consent on the pretext of false promise of marriage and he repeatedly committed rape her on the pretext of marriage and he took some pictures, made a video and put signatures of the victim on some blank papers. In January 2022, she first time to know that she was 3 to 4 months pregnant. Thereafter, the appellant forcefully fed some medicines to the victim, after that he refused to marry and left to her house and then the victim told everything to her family members, then the victim's family members admitted her to the hospital where her operation was conducted. The appellant has threatened to make the video of the victim viral.

After lodging the first information report, statement of the victim under Section 161 Cr.P.C. was recorded on 26.05.2022; medical examination of the victim was conducted on 27.05.2022; statement of the victim under Section 164 Cr.P.C. was recorded on 03.06.2022. After recording the statements of the other prosecution witnesses, charge sheet had been submitted against the appellant. The appellant was arrested on 25.05.2022.

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 allegations of the appellant, victim had love affairs with the appellant and made physical relationship with the victim on the pretext of false promise of marriage. The consent of the victim is not immediate result of false promise of marriage. The appellant made physical relations with the victim in the house of the victim. It is further submitted that there is no evidence with regard to abortion without the consent of the victim, no photographs and videos has been collected during the course of the investigation.

It is further submitted that the appellant is languishing in jail since 25.05.2022. 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. 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 appellant and the victim was major at the time of incident.

(b) The consent of the victim is not immediate result of false promise of marriage.

(c) There is no evidence with regard to abortion without the consent of the victim, no photographs and videos has been collected during the course of the investigation.

(d) The appellant is languishing in jail since 25.05.2022.

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 21.07.2022 is set aside.

Let appellant/applicant, Krishna Joshi 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