Allahabad High Court
Neeraj Tiwari @ Pappu vs State Of U.P. on 21 December, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26976 of 2022
Applicant :- Neeraj Tiwari @ Pappu
Opposite Party :- State of U.P.
Counsel for Applicant :- D.M.Tripathi
Counsel for Opposite Party :- G.A.
Hon'ble Manish Mathur,J.
1. Supplementary affidavit filed today in Court on behalf of 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.334 of 2019, under Sections 366, 376, 323, 504, 506 IPC, registered at Police Station Khuldabad, District Prayagraj.
3. As per contents of FIR, incident is said to have taken place on 17.10.2019 at about 12.00 P.M. when the daughter of first informant was found missing. FIR was lodged against the applicant under section 366 IPC.
4. Learned counsel for applicant submits that the applicant has been falsely implicated in the charges levelled against him. It is submitted that earlier FIR had been alleged against the applicant by the very same first informant under the same sections which was registered as Case Crime No.10 of 2018 in which the applicant was admitted to bail by coordinate bench of this court on 06.06.2019 passed in Criminal Misc. Bail Application No.23555 of 2019 which is the cause for lodging the second FIR. It is submitted that as per radio-logical assessment, the age of prosecutrix has been indicated as between 20 to 25 years and was in a consensual relationship with the applicant which was disliked by her parents and was the cause for lodging the first FIR against applicant. It is submitted that medical report does not corroborate allegations levelled against the applicant and there are serious contradictions in the statements of prosecutrix recorded under sections 161 and 164 Cr.P.C.. Attention has been drawn to certified copies of order-sheet to indicate that although charges were framed against the applicant on 06.01.2022 but thereafter no prosecution witness has put in appearance despite continuous summons while applicant is in jail since 02.01.2020.
5. Learned Additional Government Advocate appearing on behalf of State has opposed the bail application with the submission that there are only minor contradictions in the statements of prosecutrix recorded under sections 161 and 164 Cr.P.C. and the second allegation of rape has been alleged while the applicant was on bail and therefore does not deserve any indulgence.
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 the submission advanced by learned counsel for parties and upon perusal of material available on record, it appears that although the allegations of rape have been alleged against the applicant for the second time by the same first informant and the same prosecutrix but there appears to be major contradiction in the statement of prosecutrix recorded under sections 161 and 164 Cr.P.C. particularly with regard to the incident as narrated. Medical report also does not appear to support the allegations. Second FIR pertaining to same allegations have been lodged immediately after the applicant was admitted to bail in the first FIR. As per certified copies of order-sheet, despite framing of charges as far as back as January 2022, no prosecution witness is putting in appearance despite repeated summons in issue, although applicant is in jail since 02.01.2020.
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, Neeraj Tiwari @ Pappu, 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 :- 21.12.2022
Subodh/-
