Jogindar vs State Of U.P.And 3 Others
2022 Latest Caselaw 21121 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 65
 

 
Case :- CRIMINAL APPEAL No. - 1859 of 2022
 

 
Appellant :- Jogindar
 
Respondent :- State Of U.P.And 3 Others
 
Counsel for Appellant :- Vijay Prakash Chaturvedi
 
Counsel for Respondent :- G.A.,Shahroze Khan
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Vijay Prakash Chaturvedi, learned counsel for the appellant, Sri Shahroze Khan, learned counsel for the respondent no. 2 and Shri Virendra Kumar Maurya, 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 Jogindar to set aside the impugned order dated 03.02.2022 whereby the Special Judge (SC/ST Act), Additional Sessions Judge, Siddharth Nagar has rejected the bail application No. 101 of 2022 of the appellant moved by him in Case Crime No. 187 of 2021, under Sections 376, 504, 506 I.P.C. and Section 3(2)(v), of SC/ST Act, Police Station- Siddharth Nagar, District- Siddharth Nagar.

Brief facts of the case are that the first information report dated 17.08.2021 was lodged by the victim on the basis of an application under Section 156(3) of Cr.P.C. stating that on 21.04.2021 at about 08:00 P.M. when the first informant went to defecate in a field near the southern part of the village, the appellant caught hold her hand and committed rape her by holding a knife to her neck and abused her with caste derogatory words and after threatening with dire consequences, he fled away. After that she informed her husband about the incident. She went to the police station but her complaint has not been registered.

After lodging the first information report, statement of the victim under Section 161 Cr.P.C. was recorded on 26.07.2021. Medical examination of the victim was recorded on 19.08.2021. Statement of the victim under Section 164 Cr.P.C. was recorded on 24.08.2021. After recording the statements of the husband of the victim and other witnesses Puspa and Anita, charge sheet had been submitted against the appellant. The appellant was arrested on 08.01.2021.

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 two ladies have not reached the spot after the incident but as per statement of the victim recorded under Section 164 of Cr.P.C. two witnesses namely Pushpa and Anita reached the spot immediately after the incident. There is material contradiction between the statement of the victim recorded under Section 161 and 164 of Cr.P.C. It is further submitted that the appellant was 30 years old and victim was 40 years old at the time of incident.

It is further submitted that the appellant has enmity with one Collector Singh, Jaswant Singh, Balwant Singh, Surya Kanti Singh. The appellant has lodged an F.I.R. against the aforesaid persons bearing Case Crime No. 1613 of 2014, under Section 328, 307, 201 of I.P.C. and the trial is pending against them. It is further submitted that the victim is a domestic servant of Collector Singh due to instigation of Collector Singh, she falsely implicated to the appellant in the present case. The appellant has criminal history of one case which was registered at 2015, in which he has been granted bail.

It is further submitted that the appellant is languishing in jail since 08.01.2022. The appellant has no criminal history except the aforesaid case.

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 was 30 years old and victim was 40 years old at the time of incident.

(b) There is material contradiction between the statement of the victim recorded under Section 161 and 164 of Cr.P.C., it would not be appropriate to discuss the same at this stage.

(c) The appellant is languishing in jail since 08.01.2022.

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 03.02.2022 is set aside.

Let appellant/applicant, Jogindar 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 :- 15.12.2022

Ishan