Allahabad High Court
Kareena vs State Of U.P And Another on 19 December, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43486 of 2021
Applicant :- Kareena
Opposite Party :- State Of U.P And Another
Counsel for Applicant :- Raj Kumar Vaishya,Sanjay Kumar
Counsel for Opposite Party :- G.A.,Devi Dayal
Hon'ble Manish Mathur,J.
Heard Mr. Sandeep Mishra learned counsel holding brief for Mr. S.K. Rajput learned counsel for applicant, Mr. Vishvavendra Singh learned counsel holding brief for Mr. D.D. kushwaha learned counsel for informant and learned Additional Government Advocate appearing on behalf of State and perused the record.
The present bail application has been filed by the applicant seeking enlargement on bail in Case Crime No. 74 of 2021, under Section 363, 366, 366-A, 376, 120-B I.P.C. and Section 17/6 POCSO Act, Police Station Rendhar, District Jalaun, wherein the allegation is that the informant's minor daughter has been enticed and is not traceable.
As per contents of FIR, applicant was allegedly instrumental in the enticing away of minor daughter of first informant.
Learned counsel for applicant submits that the applicant has been falsely implicated in the charges levelled against her and even otherwise the applicant being a lady, there is no question of Section 376 IPC being imputed against her. Co-accused Gaurav and Vivek have already been admitted to bail by co-ordinate Bench of this Court in Criminal Misc. Bail Application No. 25219 of 2022 and 33018 of 2022 respectively.
The victim has been medically examined in which no mark of injury has been found upon her although it is alleged that she has been subjected to rape. Subsequently, the trial has commenced in the matter and a supplementary affidavit has been filed stating that the victim has turned hostile and has not supported the prosecution case. Submission is that as the prosecutrix herself has not supported the prosecution case, the applicant is entitled to be enlarged on bail. It is further argued that the applicant has no prior criminal history and is in jail since 29.5.2021 and the trial is not likely to conclude shortly and that the applicant undertakes that he will not misuse the liberty of bail and will cooperate in the conduct of trial.
Learned AGA as well as learned counsel for informant although have opposed the prayer made for grant of bail but do not dispute the fact that the victim has turned hostile. It is further submitted that the victim has supported the prosecution case under Sections 161 and 164 Cr.P.C.
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."
Having considered the respective submissions advanced as also considering the fact that allegation of rape is not substantiated in the medical report and the victim herself has turned hostile and has not supported the prosecution at the stage of trial which is otherwise likely to take sufficiently long and applicant is in jail since 29.5.2021, 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.
Let the applicant - Kareena involved in 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) 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.
(iv) 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.
(v) 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.
(vi) The applicant shall remain present, in person, before the trial court on the dates fixed for (1) opening of the case, (2) framing of charge and (3) 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.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
Accordingly, the present bail application is allowed.
Order Date :- 19.12.2022
Prabhat
