Allahabad High Court
Rahul Yadav vs State Of U.P. And 3 Others on 21 December, 2022
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 75
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34504 of 2022
Applicant :- Rahul Yadav
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Atul Kumar Shahi
Counsel for Opposite Party :- G.A.,Satya Priya Mishra
Hon'ble Mrs. Manju Rani Chauhan,J.
The case is taken up in the revised call.
Heard Mr. Atul Kumar Shahi learned counsel for applicant, Mr. A.K. Asthana, Advocate holding brief of Mr. Satya Priya Mishra, learned counsel for the informant and Mr. Amit Singh Chauhan, learned A.G.A. for the State and perused the record.
The instant bail application has been filed on behalf of the applicant, Rahul Yadav with a prayer to release him on bail in Case Crime No. 137 of 2022 under Section 376-D I.P.C. and Section 5/6 POCSO Act, P.S. Khajni, District Gorkhpur.
As per prosecution version, the FIR has been lodged against one named and three not named persons with the allegations that on 18th May, 2022 when the daughter of informant aged about 18 years was at the field of vegetable, nominated co-accused Vinay Yadav has molested and raped the victim.
Learned counsel for applicant submits that the applicant has been falsely implicated in the charges levelled against him only on account of statement of prosecutrix recorded under Section 164 Cr.P.C. which is in complete variance with the contents of F.I.R. and the statement of prosecutrix recorded under Section 161 Cr.P.C. in which only the said Vinay Yadav had allegedly raped the prosecutrix while other unknown boys were said to be standing nearby. It is submitted that the applicant as such has neither been named nor is there any allegation against him either in the F.I.R. or even in the statement under Section 161 Cr.P.C. It is submitted that even otherwise the implication of applicant by the prosecutrix under Section 164 Cr.P.C. is highly improbable and is not corroborated by medical report. It is stated that the applicant is in jail since 6th June, 2022 and as yet only charge sheet has been filed in the matter. The applicant does not have any previous criminal history. In case, he is released on bail, he will not misuse the liberty of bail and will cooperate in the trial by all means. Lastly, it is submitted that there is no chance of applicant fleeing away from judicial process or tampering with the witnesses.
He further submits that co-accused of this case namely, Rahul Yadav, having similar role has been granted bail by the co-ordinate Bench of this Court, vide order dated 04.11.2022 in Criminal Misc. Bail Application No.41326 of 2022, therefore, the applicant is also entitled to be released on bail on the ground of parity.
Learned A.G.A. appearing on behalf of State as well as learned counsel for informant have opposed bail application with the submission that statement of prosecutrix under Section 164 Cr.P.C. clearly makes out a cognizable offence against the applicant. However, they could not disputed that fact that co-accused of this case having similar role has already been enlarged on bail.
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 there is material contradiction in the F.I.R. and the statement of prosecutrix recorded under Section 161 Cr.P.C. with that recorded under Section 164 Cr.P.C. with regard to role of applicant. The statements of prosecutrix as well as the F.I.R. clearly indicate the main gist of allegations being against the main accused Vinay Yadav whose role is distinct from that of the applicant. The medical report also does not appear to support the allegations levelled against the applicant who is in jail since 6th June, 2022 with only charge sheet having yet been filed.
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."
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. Accordingly bail application is allowed.
Let applicant-Rahul Yadav 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.
It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.
Order Date :- 21.12.2022/Rahul.
