Irfan vs State Of U.P. And 3 Others
2022 Latest Caselaw 21930 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 71
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30638 of 2022
 

 
Applicant :- Irfan
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Dinesh Kumar Yadav
 
Counsel for Opposite Party :- G.A.,Uma Barman
 

 
Hon'ble Manish Mathur,J.

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

2.This second bail application has been filed with regard to Case Crime No.356 of 2020, under Sections 363, 376D, 506 IPC and Section 5/6 Protection of Children From Sexual Offences Act, registered at Police Station Budhana, District Muzaffar Nagar. First bail application having been rejected vide order dated 05.02.2021 by Hon'ble Justice Dinesh Kumar Singh-I. Since his Lordship has demitted office therefore this bail application has been listed before this Court as per roster.

3. As per F.I.R. lodged by the victim's father, his daughter Mahsar was enticed away by the accused-applicant with the help of Naushad on 24.8.2020 at about 11:00 p.m.. Thereafter search was made and the victim was left at Jaula Puliya on 26.8.2020 at about 12:00 noon. One Nasir who had found the victim standing there, had brought her home, thereafter victim revealed details to her father that Irfan had committed rape upon her. She was very scared

4. Learned counsel for applicant submits that first bail application has been rejected primarily on the statements of victim recorded under sections 161 and 164 Cr.P.C. corroborating the allegations levelled in the FIR with relation to the applicant. It is submitted that subsequently during the course of trial, neither the first informant as P.W.1 nor the prosecutrix as P.W.2 have supported the prosecution version and were therefore declared hostile. It is submitted that trial as yet is only at the inception although as per charge-sheet there are a total of nine prosecution witnesses.

5. Learned AGA as well as learned counsel for informant have opposed the bail application but do not dispute the fact situation.

6. Hon'ble the Supreme Court in Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and another reported in (2004) 7 SCC 528 while holding that a Court granting bail should exercise its discretion in a judicious manner and not as a matter of course and that a detailed examination of evidence and elaborate documentation of merit need not be undertaken although there is need to indicate reasons for prima facie concluding why bail was being granted. It has further been held that at the time of consideration of second or subsequent bail application, there is onus on the Court to consider the grounds on which earlier bail application had been rejected and it is only after such consideration if the court is of the opinion that bail has to be granted then specific reason should be indicated why the subsequent bail application is being granted in spite of earlier rejection. The relevant paragraph is as follows:

"11. The law in regard to grant or refusal of bail is very well settled. The court granting ball should exercise its discretion in a Judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting ball; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singht and Puran v. Rambilas.)

12. In regard to cases where earlier bail applications have been rejected there is a further onus on the court to consider the subsequent application for grant of bail by noticing the grounds on which earlier bail applications have been rejected and after such consideration if the court is of the opinion that bail has to be granted then the said court will have to give specific reasons why in spite of such earlier rejection the subsequent application for bail should be granted. (See Ram Govind Upadhyay)."

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. Considering the submissions advanced by learned counsel for parties and upon perusal of material available on record, it appears that although first bail application has been rejected primarily on the victim substantiating allegation against the applicant in her statements recorded under sections 161 and 164 Cr.P.C. but subsequently during the course of trial, neither the first informant as P.W. 1 nor the prosecutrix as P.W.2 have supported the prosecution version and therefore were declared hostile. Naturally the deposition before the Court would have primacy over statements recorded under sections 161 and 164 Cr.P.C. as per Section 3 of the Evidence Act. Applicant is in jail since 04.09.2020 with trial only at the inception. .

9. 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.

10. Accordingly bail application is allowed.

11. Let applicant, Irfan, 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 :- 20.12.2022

Subodh/-