Allahabad High Court
Lalchand Urf Ninna vs State Of U.P. And 3 Others on 15 December, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40242 of 2022
Applicant :- Lalchand Urf Ninna
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- A.Z.Khan
Counsel for Opposite Party :- G.A.
Hon'ble Manish Mathur,J.
1. Supplementary affidavit filed today in Court by learned counsel for applicant is taken on record.
1A. 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.133 of 2022, under Sections 354,354A, 376, 377, 323, 506 IPC and Section 5Da/6 Protection of Children From Sexual Offences Act, registered at Police Station Chilkana, District Saharanpur.
2.A As per office report dated 29.11.2022, notices upon the informant have been served personally in October 2022 itself but no one has put in appearance on behalf of informant.
3. As per contents of FIR, the incident has taken place on 04.05.2022 at about 12.30 P.M. when the applicant on returning home did not find his minor daughter aged about six years and subsequently shown as coming out of the room of applicant whereafter his minor daughter informed him that she had been sexually molested by the applicant.
4. Learned counsel for applicant submits that the applicant has been falsely implicated in the charges levelled against him only on account of previous altercation having occurred between the applicant and the first informant owing to gambling. It is submitted that there is material contradiction in the statements of alleged victim recorded under sections 161 and 164 Cr.P.C. with regard to the incident with statement recorded under section 164 Cr.P.C. indicating penetrative sexual assault. However learned counsel has drawn attention to the medical report indicating the presence of hymen in the alleged victim. It is submitted that applicant is in jail since 13.05.2022 with only charge-sheet having been filed but even otherwise the charges are not made out in view of aforesaid contradiction.
5. Learned Additional Government Advocate appearing on behalf of State has opposed the bail application with the submission that even otherwise statement of alleged victim recorded under section 161 Cr.P.C. clearly makes out a case against applicant under Protection of Children From Sexual Offences Act.
6. 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."
7. Considering submissions advanced by learned counsel for parties and upon perusal of material available on record, it appears that although allegation of sexual molestation has been attributed to the applicant in the FIR, charge-sheet has been filed under sections 376 and 377 IPC as well but there appears to be material contradiction in the statements of victim recorded under sections 161 and 164 Cr.P.C. with regard to nature of sexual molestation that has taken place which may not make out a case against the applicant with regard to section imputed. Applicant is in jail since 13.05.2022 with only charge-sheet having been filed.
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 applicant, Lalchand Urf Ninna, involved in the aforesaid case crime be released on bail on his 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 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.
Order Date :- 15.12.2022
Subodh/-
