Sushil vs State Of U.P.
2022 Latest Caselaw 2345 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 66
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4138 of 2022
 

 
Applicant :- Sushil
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Kameshwar Singh
 
Counsel for Opposite Party :- G.A.,Jitendra Kumar Singh,Siddhartha Baghel
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Sri Kameshwar Singh, learned counsel for applicant, Sri K.P. Pathak, learned A.G.A. for State and Sri Jitendra Kumar Singh, Advocate for Complainant.

2. Applicant-Sushil, has approached this Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. after rejection of his Bail Application vide order dated 05.01.2022, passed by Additional Sessions Judge/ Fast Track Court First, Banda, in Case Crime No.759 of 2021, under Section 376 I.P.C., Police Station Kotwali Nagar, District Banda.

3. The victim herself lodged FIR on 17.11.2021 against applicant under Section 376 IPC alleging that she is aged about 19 years old and a student of Class-XII. She was subjected to repeated rape against her will by applicant on the pretext of false promise of marriage for last many years.

4. Learned counsel for applicant submits that on the basis of contents of FIR and the statement of victim, it is a case of consensual relationship and on 06.11.2020 a compromise was entered between families of applicant and victim whereby parents were agreed that the marriage will be solemnized between applicant and victim after the sister of applicant got married. Learned counsel read out the statement of victim recorded under Section 164 Cr.P.C. that it is improbable that once the applicant committed rape, the victim on her own will, again visited the place of applicant wherein again allegedly applicant raped her. He also submits that the fact of compromise was specifically accepted by victim in her statement. Learned counsel for applicant has also relied on Supreme Court's decision in Pramod Suryabhan Pawar vs. The State of Maharashtra and another, (2019) 9 SCC 608; Maheshwar Tigga vs. The State of Jharkhand, (2020) 10 SCC 108; and, Sonu alias Subhash Kumar vs. State of Uttar Pradesh and another, AIR 2021 SC 1405. Lastly, it is submitted that applicant has no criminal history and he is languishing in jail since 02.12.2021 and in case, he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.

5. The above submissions are vehemently opposed by learned A.G.A. and learned counsel appearing for Complainant. They pointed out that the statement of victim is specific that applicant entered with physical relationship with victim against her will. There are evidence in the nature of CDR that the victim and applicant were continuously in touch and they had talked on phone about 426 times.

6. LAW ON BAIL

A. "The basic rule may perhaps be tersely put as bail, not jail" (State Of Rajasthan, Jaipur vs Balchand @ Baliay : (1977 AIR 2447, 1978 SCR (1) 535). Power to grant bail under Section 439 of CrPC, is of wide amplitude. The court is bestowed with considerable but not unfettered discretion, which calls for exercise in a judicious manner and not as a matter of course and not in whimsical manner. (see Ram Govind Upadhyay Vs Sudarshan Singh :(2002) 3 SCC 598 and Neeru Yadav Vs State of U.P.:(2016)15 SCC 422).

B. "The considerations in granting bail are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out." [Gurcharan Singh v. State (Delhi Administration), (1978) 1 SCC 118)]. "There is no strait jacket formula which can ever be prescribed as to what the relevant factors could be. However, certain important factors that are always considered, inter-alia, relate to prima facie involvement of the accused, nature and gravity of the charge, severity of the punishment, and the character, position and standing of the accused" [State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21].

C. "....It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge." (Prahlad Singh Bhati vs. NCT of Delhi and Ors:( 2001) 4 SCC 280).

D. "....It is a fundamental premise of open justice, to which our judicial system is committed, that factors which have weighed in the mind of the Judge in the rejection or the grant of bail are recorded in the order passed. Open justice is premised on the notion that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The duty of Judges to give reasoned decisions lies at the heart of this commitment...." (Mahipal v. Rajesh Kumar, (2020) 2 SCC 118) and also (Ms. Y versus State of Rajasthan and Anr :2022 SCC OnLineSC 458).

E. "....There cannot be elaborate details recorded to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal while passing an order on an application for grant of bail. However, the Court deciding a bail application cannot completely divorce its decision from material aspects of the case such as the allegations made against the accused; severity of the punishment if the allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of the witnesses being influenced by the accused; tampering of the evidence; the frivolity in the case of the prosecution; criminal antecedents of the accused; and a prima facie satisfaction of the Court in support of the charge against the accused." (Manoj Kumar Khokhar (2022)3 SCC501).

7. In view of above discussion on law and submissions made by learned counsel for parties, in the present case applicant is a girl, aged about 19 years and she is quite mature that she herself lodged the FIR against applicant. She has admitted in her statement that applicant was acquainted with her for a long period and they used to meet each other. She made relationship with applicant as husband and wife, however, the allegation is that relationship was under the pretext of marriage. The number of phone calls between applicant and victim, which are about 426 times within a short period, show that they were in regular touch with each other. There is compromise between parties which is on record. I find merit in the argument of learned counsel for applicant and the judgments relied [Pramod Suryabhan Pawar (supra); Maheshwar Tigga (supra); and, Sonu alias Subhash Kumar (supra)] in support the case of applicant. It appears that consent of victim was a conscious choice and it also appears that involvement of fraud or false promise of marriage is not the sole ground under which the victim entered with consensual relationship with applicant. The applicant has no criminal history and is languishing in jail since 02.12.2021, therefore, this Court is of the view that a case of bail is made out.

8. Let the applicant-Sushil be released on bail in the aforesaid case crime number on 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

(ii) The applicant will abide the orders of Court, will attend the Court on every date and will not delay the disposal of trial in any manner whatsoever.

(iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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.

(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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., may be issued and if 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 I.P.C.

(v) The applicant shall remain present, in person, before the Trial Court on dates fixed for (1) opening of the case, (2) framing of charge and (3) 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 and the Trial Court may proceed against him under Section 229-A IPC.

(vi) The Trial Court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

9. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.

10. The bail application is allowed.

11. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.

Order Date :- 9.5.2022

AK