Himanshu Gautam @ Hank Hims vs State Of U.P.
2022 Latest Caselaw 4174 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48194 of 2021
 

 
Applicant :- Himanshu Gautam @ Hank Hims
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Sudhir Kumar Agarwal,Alok Misra
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Learned A.G.A. has filed counter affidavit today, which is taken on record.

Heard Sri Sudhir Kumar Agarwal, learned counsel for the applicant and learned A.G.A. for the State and perused the material on record.

The present bail application has been filed on behalf of applicant Himanshu Gautam @ Hank Hims under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 364 of 2019, for offence punishable under Sections 376, 504, 506 of the Indian Penal Code, registered at Police Station- Sipri Bazar, District- Jhansi during pendency of the trial, after rejecting the bail application of the applicant by Additional Sessions Judge, (POCSO Act), Court No. 9, Jhansi vide order dated 16.10.2021.

Brief facts of the present case are that the first information report dated 28.07.2019 has been lodged by the victim against the applicant stating therein that victim has made friendship with the applicant through Facebook prior to two years of lodging of the present first information report. After making friendship, the applicant called the victim to his house on the pretext of marriage and made physical relationship with the victim several times, during which he also made a video clip of the victim and threatened her that he would make the video viral. The applicant tortured the victim and also took money by blackmailing and threatened her several times to defame her if she did not give the money to him.

After lodging of the first information report, the statement of the victim was recorded under Section 161 of Cr.P.C. on 28.07.2019; victim has refused to get her medical examination on 28.07.2019; the statement of the victim was recorded under Section 164 of Cr.P.C. on 07.08.2019; second statement of the victim was recorded under Section 161 of Cr.P.C. on 07.08.2019. After recording the statement of the prosecution witnesses, the Investigating Officer has submitted charge sheet on 20.08.2021. The applicant was arrested on 16.08.2021.

Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. As per allegations of the first information report, the victim has made friendship with the applicant prior to two years of lodging of the present first information report. It is further submitted that as per second statement of the victim recorded under Section 161 Cr.P.C. the victim was admittedly consenting party and she is a major and aged about more than 29 years old at the time of the incident. It is further submitted that victim fell in love with the applicant in the year 2017 and she met with the applicant frequently and was roaming here and there on her free will. The victim was resided at Agra and the applicant was resided at Jhansi and she went to Jhansi to meet the applicant. There is no averment in the statement of the victim recorded under Sections 161 and 164 of Cr.P.C. that the applicant has forcibly committed rape with her.

It is next contended that the first information report has been lodged on the basis of false and frivolous allegations. No prima-facie case is made out against the applicant. The Investigating Officer has not collected any evidence regarding video viral against the applicant. It is further submitted that victim has not supported the prosecution case in her cross-examination as PW-1. 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) The victim has made friendship with the applicant prior to two years of lodging of the present first information report;

(b) The victim was admittedly consenting party and she is a major and aged about more than 29 years old at the time of the incident as per second statement of the victim recorded under Section 161 of Cr.P.C.;

(c) Victim fell in love with the applicant in the year 2017 and she met with the applicant frequently and was roaming here and there on her free will;

(d) The Investigating Officer has not collected any evidence regarding video viral against the applicant;

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

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, Himanshu Gautam @ Hank Hims 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 :- 26.5.2022

Ishan