Anil Bhati vs State Of U.P.
2022 Latest Caselaw 2148 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4368 of 2022
 

 
Applicant :- Anil Bhati
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Dharmendra Kumar Mishra,Rajeev Mishra,Vimal Chandra Mishra
 
Counsel for Opposite Party :- G.A.,Sanjay Singh
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Dharmendra Kumar Mishra, learned counsel for the applicant, Shri Ram Adhar, learned A.G.A. for the State, Shri Rajeev Kumar Singh, Advocate holding brief of Shri Sanjay Singh, learned counsel for the first informant and perused the material on record.

The present bail application has been filed on behalf of applicant Anil Bhati under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 531 of 2021 for offence punishable under Sections 376 of the Indian Penal Code, registered at Police Station Swar, District Rampur, during pendency of the trial, after rejecting the bail application of the applicant by Incharge Sessions Judge/Special Judge (POCSO Act), Rampur vide order dated 12.1.2022.

Brief facts of the case are that the First Information Report dated 22.10.2021 has been lodged by the victim against the applicant under Section 376, IPC stating therein that she contacted on the mobile number of the applicant and talked with him. The applicant made friendship with the victim. He gave one mobile sim to the victim and talked with her continuously. On 2.11.2020 at about 11.00 a.m. the applicant took the victim in a car and committed rape with her in the field of sugarcane. One person made video of the incident and on the basis of said video, the applicant repeatedly committed rape with the victim.

After lodging the first information report, statement of the victim under Section 161, Cr.P.C. was recorded on 22.10.2021. Medical examination was conducted on 23.10.2021. Statement of the victim under Section 164, Cr.P.C. was recorded on 25.10.2021. After recording the statements of other prosecution witnesses under Section 161, Cr.P.C., charge sheet has been submitted against the applicant on 30.12.2021. The applicant was arrested on 13.12.2021.

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 admitted case that the victim was major at the time of incident. It is further submitted that the victim has admitted that she made friendship with the applicant 5-6 years prior to the incident. She went with the applicant first time on 2.11.2020 and she went with him by a car. It is further submitted that the Investigating Officer has not collected any video of the incident. It is further submitted that the victim was consenting party in the present case and both had made relations and friendship. There is material contradiction in the allegation of FIR as well as statements of the victim recorded under Section 161 & 164. Cr.P.C. with regard to the fact of friendship of the victim with the applicant. First information report has been lodged after about 11 months of the incident.

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. and learned counsel for the first informant have 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 FIR cannot be said to be fatal to the case at this juncture while considering the application of bail. But they could not point out any material to the contrary. They further submit 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) The victim was admittedly major at the time of incident;

(b) Victim has stated that she made friendship with the applicant 5-6 years prior to the incident;

(c) Investigating Officer has not collected any video during the course of investigation;

(d) There is material contradiction in the allegation of FIR as well as statements of the victim recorded under Section 161 & 164. Cr.P.C. with regard to fact of friendship of the victim with the applicant. It would not be appropriate to discuss the same at this stage.

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, Anil Bhati 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/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the applicant, keeping in view the law laid down by the Supreme Court in the case of Alakh Alok Srivastava v. Union of India & Anr., AIR 2018 SC 2440, 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 alongwith 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 :- 6.5.2022

T. Sinha