Neeraj Kumar vs State Of U.P. And Another
2022 Latest Caselaw 4995 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 47
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35116 of 2020
 
Applicant :- Neeraj Kumar
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Syed Wajid Ali,Syed Mohammed Jafer Husain
 
Counsel for Opposite Party :- G.A.,Gore Lal
 

 
Hon'ble Sanjay Kumar Pachori,J.

Learned counsel for the applicant has filed supplementary affidavit as well as certified copy of the statement of PW-1 today, which are taken on record.

Heard Sri Syed Mohammed Jafer Husain, learned counsel for the applicant, Sri Dileep Kumar Advocate holding brief of Sri Gore Lal, learned counsel for the first informant and Sri Manoj Kumar Dwivedi, learned A.G.A. for the State and perused the material on record.

The present bail application has been filed on behalf of applicant Neeraj Kumar under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 98 of 2020 for offence punishable under Sections 376, 504 of the Indian Penal Code, and Section 3/4 of Protection of Children From Sexual Offences Act, 2012 registered at Police Station- Dhata District- Fatehpur, during pendency of the trial, after rejecting the bail application of the applicant by Additional Sessions Judge/ Exclusive (POCSO Act), Fatehpur vide order dated 06.08.2020.

Brief facts of the present case are that the first information report dated 04.06.2020 has been lodged under Section 354(?), 504 of I.P.C. and Section 3/4 of POCSO Act, against the applicant by the mother of the victim stating therein that on 29.05.2020, the first informant and her minor daughter aged about 13 years were sleeping outside of the house. At about 12.00 in the mid night, the applicant came there with bad intention and sat on the cot of her minor daughter and tried to outrage her modesty, her daughter woke up and shouted, then applicant abuses her daughter and fled away from the place of incident.

After lodging of the first information report, the statement of the victim was recorded under Section 161 and 164 of Cr.P.C. on 04.06.2020 and 20.06.2020 respectively; medical examination was conducted on 02.07.2021. After recording the statement of the first informant and other prosecution witnesses under Section 161 of Cr.P.C., the Investigating Officer has submitted charge-sheet against the applicant. The applicant was arrested on 04.06.2021.

Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that first information report has been lodged by the mother of the victim for the offence punishable under Section 354(?), 504 of I.P.C. and Section 3/4 of POCSO Act. It is further submitted that the victim of the present case has not stated any allegation of rape against the applicant in her statement recorded under Section 161 of Cr.P.C. It is further submitted that there is material contradiction and improvement between the statement of the victim recorded under Sections 161 and 164 Cr.P.C. It is further stated that one month after the incident, the victim made the allegation in her statement recorded under section 164 of Cr.P.C. that the applicant has committed rape with her. It is further submitted that first informant as PW-1 has not supported the prosecution case in her cross-examination before the trial court. It is further submitted that victim as Pw-2 has also not supported the prosecution case in her examination-in-chief before the trial court and the victim has declared hostile.

He has next argued that the applicant has no previous criminal history and if the applicant is released on bail, he shall not misuse the liberty of bail.

Per contra, learned A.G.A. has supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicant and submits that the allegations involved are very serious in nature and the delay in lodging the F.I.R. cannot be said to be fatal to the case at this juncture while considering the application of bail. But he could not point out any material to the contrary. He further submits that in case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.

After considering the facts of the present case it prima facie appears that;

(a) F.I.R. of the present case has been lodged under Section 354(?), 504 of I.P.C. and Section 3/4 of POCSO Act

(b) The victim of the present case has not stated any allegation of rape against the applicant in her statement recorded under Section 161 of Cr.P.C.;

(c) There is material contradiction and improvement between the statement of the victim recorded under Sections 161 and 164 Cr.P.C., it would not be appropriate to discuss the same at this stage;

(d) One month after the incident, the victim made the allegation in her statement recorded under section 164 of Cr.P.C. that the applicant has committed rape with her;

(e) First informant as PW-1 has not support the prosecution case in her cross-examination before the trial court;

(f) Victim as Pw-2 has also not supported the prosecution case in her examination-in-chief before the trial court and the victim has declared hostile;

It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.

Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.

Let applicant, Neeraj Kumar be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

(i) The applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.

(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.

(iii) 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 of Cr.P.C.

(iv) 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 the trial court.

(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.

(vi) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that 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 in accordance with law.

The trial court may make all possible efforts/endeavor and try to conclude the trial expeditiously in accordance with law after the release of the applicant, if there is no other legal impediment.

It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.

The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant along-with a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.

The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 7.6.2022

Ishan