Allahabad High Court
Rajesh Kumar @ Khanney vs State Of U.P. on 2 November, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44668 of 2022
Applicant :- Rajesh Kumar @ Khanney
Opposite Party :- State of U.P.
Counsel for Applicant :- Janardan Prasad Tripathi
Counsel for Opposite Party :- G.A.
Hon'ble Manish Mathur,J.
1. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State and perused the record.
2. This first bail application has been filed with regard to Case Crime No.142 of 2022, under Sections 498A, 323, 504, 506,376,120B IPC, registered at Police Station Bahariya, District Allahabad.
3. Applicant is brother-in-law of the informant and as per FIR participated in the harassment caused to informant on account of dowry demand. It has been stated that earlier the informant and her husband had a matrimonial dispute which was resolved but even thereafter the informant was harassed and on 01.03.2022, the applicant forcibly committed rape upon her.
4. Learned counsel for applicant submits that the applicant has been falsely implicated in the charges levelled against him only on account of matrimonial dispute between the husband and wife and the entire family has been roped in only as a measure of revenge. It is submitted that although alleged incident of rape is said to have taken place on 01.03.2022, FIR has been lodged belatedly on 07.07.2022 without any cogent explanation for same. It is submitted that as per statements of prosecutrix recorded under sections 161 and 164 Cr.P.C, marriage between her and the brother of applicant has taken place 12 years prior to date of incident and as such there was no occasion for any dowry demand to be made. It is therefore submitted that FIR has been lodged only to cause harassment to the in laws.
5. Learned Additional Government Advocate appearing on behalf of State has opposed the bail application with the submission that FIR is duly corroborated by statements of informant recorded under sections 161 and 164 Cr.P.C and it is submitted that investigation in the matter still on going.
6. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :-
"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."
"27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."
7. Considering the submission advanced by learned counsel for parties and upon perusal of material available on record, it appears from the record that marriage between the applicant's brother and the informant has taken place 12 years prior to the date of incident. There appears to be serious matrimonial dispute between the husband and wife due to which earlier as well compromise has been effected between the two but it appears from the statement of prosecutrix that subsequently the dispute has arisen again. There does not appear to be any cogent explanation for serious delay in lodging of FIR.
8. Looking to the nature of allegations levelled against the applicant and submission made in the bail application, without expressing any opinion on the merits of case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, particularly since no reasonable apprehension of tampering with the witnesses has been alleged, prima facie, this Court finds, the applicant is entitled to be released on bail in this case.
9. Accordingly bail application is allowed.
10. Let applicant, Rajesh Kumar @ Khanney, involved in the aforesaid case crime be released on bail on his 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 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 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.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) 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. is issued and the 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 of the Indian Penal Code.
(iv) 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 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.
Order Date :- 2.11.2022
Subodh/-
