Allahabad High Court
Dharmendra Kumar Alias Kulli vs State Of U.P. on 22 December, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33128 of 2022
Applicant :- Dharmendra Kumar Alias Kulli
Opposite Party :- State of U.P.
Counsel for Applicant :- Firdos Ahmad
Counsel for Opposite Party :- G.A.
Hon'ble Manish Mathur,J.
Order on application for exemption from filing certified copy of F.I.R.
Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State on application for exemption from filing a certified copy of F.I.R..
In view of the averments made in the application, the same is allowed.
Order on Bail Application
1. 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. 193 of 2022 under Sections 376, 452, 506 IPC, P.S. Sarai Aqil, District Kaushambi.
3. As per contents of FIR, incident is said to have taken place on 28th May, 2022 when the applicant allegedly barged into the house of applicant and committed rape upon his minor daughter. It is stated that applicant is working in Mumbai and his four children residing in village with three of them including prosecutrix being mentally and physically handicapped.
4. Learned counsel for applicant submits that the applicant has been falsely implicated in the charges levelled against him only on account of previous enmity going back to the year 2014 when the applicant's father lodged an N.C.R. on 25.1.2014 against son of first informant due to a dispute pertaining to right of way. It is submitted that subsequent to that dispute, two other F.I.R.s were lodged by family of first informant against applicant's father with one complaint case bearing No. 184 of 2014 and another F.I.R. registered as case crime No. 241 of 2014. It is submitted that only in pursuance of the said dispute applicant has been falsely implicated which is amply borne out by the fact that there is serious contradiction in the statement of prosecutrix under Sections 161 and 164 Cr.P.C. as well as statements under Section 161 Cr.P.C. by other family members allegedly present at the time of incident. It is submitted that medical report also does not corroborate allegations levelled against applicant who is in jail since 2nd June, 2022 with only charge sheet having been filed.
5. Learned A.G.A. appearing on behalf of State has opposed bail application with the submission that the prosecutrix has clearly corroborated allegations of F.IR. in her statements under Section 161 and 164 Cr.P.C.
6. 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 although initially F.I.R. has been lodged under POCSO Act as well, the same was subsequently dropped finding the prosecutrix to be major in age. Although allegations of rape have been alleged in the F.I.R., there seems to be serious contradiction in the statement of prosecutrix under Sections 161 and 164 Cr.P.C. as well as in the statements of her family members who allegedly were present at the time of incident. Medical also does not appear to corroborate charges levelled and there is no cogent explanation for delay in filing F.I.R. The applicant is in jail since 2nd June, 2022 with only charge sheet having been filed.
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. 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 Dharmendra Kumar Alias Kulli 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 :- 22.12.2022
Prabhat
