Kuldeep vs State Of U.P.
2022 Latest Caselaw 3544 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 54722 of 2021
 

 
Applicant :- Kuldeep
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Mukesh Joshi
 
Counsel for Opposite Party :- G.A.,R.P.S. Chauhan,Vipin Kumar Singh
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Sri Mukesh Joshi, learned counsel for the applicant, Sri R.P.S. Chauhan, learned counsel for the first informant and Sri Pankaj Kumar Tripathi, learned A.G.A. for the State and perused the material on record.

The present bail application has been filed on behalf of applicant Kuldeep under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 22 of 2021, for offence punishable under Sections 452, 506, 376 of the Indian Penal Code, registered at Police Station- Civil Lines, District- Moradabad during pendency of the trial, after rejecting the bail application of the applicant by Additional Sessions Judge, Fast Track Court No. 1 Moradabad vide order dated 03.11.2021.

Brief facts of the present case are that the first information report dated 11.01.2021 has been lodged by the victim against the applicant (brother of the informant) and other unknown person stating therein that on 23.12.2020 at about 07:00 P.M. applicant and another unknown person entered into the house of the victim and at that time she was alone in her house; applicant and other unknown person were intoxicated condition, they closed the door of the room and, thereafter, the applicant committed rape with her and other unknown co-accused person has made a video clip of the victim and also threatened the victim by a knife, she did not raise an alarm due to this reason, after that they also threatened her with dire consequences, if she told anyone about the incident and fled away from the spot. When the victim's husband reached (no time was mentioned) she narrated the whole incident to him. After that victim and her husband went to the victim's maternal home and told the victim's parents about the said incident. The applicant was also committed marpit with his parents earlier to the present incident.

After lodging the first information report, the statement of the victim was recorded on 18.01.2021 under Section 161 of Cr.P.C.; medical examination of the victim was conducted on 23.02.2021; the statement of the victim was recorded under Section 164 Cr.P.C. on 28.02.2021. After recording the statement of other prosecution witnesses under Section 161 of Cr.P.C., charge-sheet was submitted against the applicant on 27.10.2021. The applicant was arrested on 13.10.2021.

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 next submitted that the present case is a counter blast case being Case Crime No. 2 of 2021, under Sections 354, 504, 506 of I.P.C. and Section 9/10 of POCSO Act, P.S.- Nagphani, District- Moradabad registered on 04.01.2021 which has been lodged by the applicant's wife against the husband of the victim/ first informant. It is further submitted that the present F.I.R. has been lodged after 7 days of the counter blast F.I.R. It is further submitted that there is material contradiction between the allegation of the first information report and statement of the victim recorded under Section 161 and 164 of Cr.P.C. with regard to presence of other person immediately after the incident. Firstly, she stated that she was alone at that time, then she stated that her sister-in-law came immediately after the incident and lastly, she stated that her husband came immediately after the incident. It is further argued that the first information report has been lodged after about 18 days of the incident. It is next contended that except the statement of the victim no other evidence has been collected by the Investigating Officer during the course of investigation.

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. as well as 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 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) First information report being Case Crime No. 2 of 2021, has been lodged by the wife of the applicant against the husband of the victim on 04.01.2021, under Sections 354, 504, 506 of I.P.C. and Section 9/10 of POCSO Act, and the present F.I.R. has been lodged on 11.01.2021 by sister of the applicant;

(b) There is material contradiction between the allegation of the first information report and statement of the victim recorded under Section 161 and 164 of Cr.P.C. with regard to presence of other person immediately after the incident, 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, Kuldeep 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 :- 20.5.2022

Ishan