Allahabad High Court
Pawan Kumar @ Bablu And Another vs State Of U.P. And 3 Others on 12 December, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46488 of 2022
Applicant :- Pawan Kumar @ Bablu And Another
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Ansar Ahmad
Counsel for Opposite Party :- G.A.,Kuldeep Kumar,Mohit Singh,Ram Chandra Solanki
Hon'ble Manish Mathur,J.
1. Heard learned counsel for applicant, learned counsel for informant and learned Additional Government Advocate appearing on behalf of State and perused the record.
2. This first bail application has been filed with regard to complaint case No.1 of 2021 under Sections 376DA, 504, 506 IPC and Section 3/4(2) POCSO Act, Police Station Balrai, District Etawah.
3. Complaint which has been filed in terms of Section 156(3) Cr.P.C. indicates that the applicants along with co-accused Govind committed rape upon the minor daughter of informant on 12th January, 2020.
4. Learned counsel for applicant submits that the applicants have been falsely implicated in the charges levelled against them and in fact after investigation into complaint, police filed its final police report under Section 173 Cr.P.C. against which the informant filed a protest petition which was rejected on 7th January, 2021. It is submitted that the said order was not challenged and attained finality. With regard to the same incident and same allegations, another complaint has been filed by the informant in which the applicants have been taken into custody after being summoned vide order dated 10th March, 2022. It is submitted that aforesaid summoning order has been challenged by the applicants in petition under Section 482 Cr.P.C. registered as Application No. 11089 of 2022 in which this Court vide order dated 22nd November, 2022 has granted interim protection that no coercive action would be taken against applicants till the next date of listing. It is submitted that interim order is still continuing.
5. Learned A.G.A. appearing on behalf of State as well as learned counsel for informant have opposed bail application but do not dispute the fact situation.
6. Considering submissions advanced by learned counsel for parties and upon perusal of material on record, prima facie subject to evidence led in trial, it appears that earlier a complaint had been submitted against applicants with regard to the sections which was registered as case crime No. 18 of 2020 in which after investigation a final report was submitted and protest petition thereagainst was rejected on 7th January, 2021 which became final. It appears that subsequently another complaint with regard to same allegations and same incident has been lodged by the informant whereunder the applicants have been taken into custody since summoning order was also passed on 10th March, 2022. However learned counsel for applicant has placed a copy of the order dated 22nd November, 2022 passed in petition under Section 482 Cr.P.C. in which interim directions have been passed and protection was provided to applicants.
7. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :-
"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."
"27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."
8. Looking to the nature of allegations levelled against the applicant and submission made in the bail application, without expressing any opinion on the merits of case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, particularly since no reasonable apprehension of tampering with the witnesses has been alleged, prima facie, this Court finds, the applicant is entitled to be released on bail in this case.
9. Accordingly bail application is allowed.
10. Let applicants Pawan Kumar @ Bablu and Aakash @ Aashu involved in the aforesaid case crime be released on bail on their furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) The applicants shall file an undertaking to the effect that they shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicants shall remain present before the trial court on each date fixed, either personally or through their counsel. In case of their absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) In case, the applicants misuse the liberty of bail during trial 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 them, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicants 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, 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 against them in accordance with law.
Order Date :- 12.12.2022
Prabhat
