Sadab vs State Of U.P.
2022 Latest Caselaw 21103 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 64
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 56124 of 2022
 

 
Applicant :- Sadab
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Mohd. Monis,Asheesh Kumar Tiwari
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Brij Raj Singh,J.

Heard Sri Asheesh Kumar Tiwari, learned counsel for the applicant, Sri Sanjay Singh, learned A.G.A.-I and perused the record.

It has been submitted by learned counsel for the applicant that co-accused, namely, Javed, Aabid and Pradhan @ Irshad have been granted bail vides order dated 19.10.2022, 10.10.2022 and 16.11.2022 passed in Criminal Misc. Bail Application Nos.43012 of 2022, 44342 of 2022 and 42963 of 2022. For ready reference, bail order of co-accused Javed is reproduced herein under:-

''1. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State and perused the record.

2. This first bail application has been filed with regard to Case Crime No. 108 of 2022 under Sections 376D, 342, 506, 120B IPC, P.S. New Mandi, District Muzaffar Nagar.

3. As per contents of FIR, the incident is said to have taken place on 22nd March, 2022 when the informant/victim was walking on the highway along with her husband. It is stated that persons named in the F.I.R. were following the couple and thereafter forced them into an open area whereafter the victim's husband was tied to a tree and victim was raped by the named accused.

4. It has been contended by the learned counsel for the applicant that the applicant has been falsely implicated in the present case due to ulterior motive. Learned counsel for the applicant has next drawn the attention of this Court towards annexure-6 to the affidavit accompanying this bail application, which is the statement of the victim recorded under Section 164 Cr.P.C. wherein only the allegation of eve teasing the victim has been levelled against the applicant. It is next contended that the applicant has not committed the offence in question and in view of the statement of the victim recorded under Section 164 Cr.P.C. no offence under the charged Sections is made out against the applicant. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused has 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. It has also been submitted that the applicant is languishing in jail since 23.3.2022. It has been pointed out that the applicant has no criminal history.

5. Learned A.G.A. appearing on behalf of State has opposed bail application with the submission that a case of molestation in any case is made out against the applicant.

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 applicant is not named in the F.I.R. and his name has been introduced only during subsequent statement of prosecutrix under section 161 Cr.P.C. However it also appears that in her statement under Section 164 Cr.P.C., an allegation of only eve teasing has been levelled against the applicant. As such there appears to be contradiction in the statement of prosecutrix recorded under Section 161 and 164 Cr.P.C. as well as the F.I.R. Co-accused Abid having a similar role has already been enlarged on bail by co-ordinate Bench of this Court in Criminal Misc. Bail Application No. 44342 of 2022.

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. "

Learned counsel for the applicant further submitted that looking to the statement of the victim recorded under Section 164 Cr.P.C., it is apparent that name of other co-accused have also stated by the prosecutrix along with the present applicant, therefore, the case of the applicant is at par with the co-accused Javed, Aabid and Pradhan @ Irshad and he is also entitled for bail. He further submits that the applicant is languishing in jail since 03.09.2022 having no criminal history and that in case he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.

Learned A.G.A. opposed the prayer for bail but could not disputed the aforesaid facts.

Considering all over facts and circumstances of the case, the case of the applicant is at par with the co-accused Javed, Aabid and Pradhan @ Irshad who have been granted bail by this Court, submissions of learned counsel of both sides, nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment, and larger mandate of the Article 21 of the Constitution of India, the dictum of Apex Court in the case of Dataram Singh v. State of U.P. and another, reported in (2018) 2 SCC 22 and without expressing any opinion on the merit of the case, I find it to be a case of bail.

Let the applicant- Sadab involved in Case Crime No. 108 of 2022 under Sections 376-D, 342, 506, 120-B I.P.C., P.S. New Mandi, District Muzaffar Nagar be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

(i) 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 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 applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iii) In case, the applicant misuses 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 him, in accordance with law, under Section 174-A of the Indian Penal Code.

(iv) 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 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 him in accordance with law.

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 in this order.

Order Date :- 15.12.2022

Krishna*