Allahabad High Court
Diwakar @ Khunnu vs State Of U.P. And 3 Others on 3 November, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 24113 of 2022
Applicant :- Diwakar @ Khunnu
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Ranjeet Singh
Counsel for Opposite Party :- G.A.,Raj Kumar Singh
Hon'ble Manish Mathur,J.
1. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State, Mr. Vivek Tripathi, Advocate holding brief for Mr. Raj Kumar Singh, learned counsel for informant and perused the record.
2. This first bail application has been filed with regard to Case Crime No.489 of 2021 under Sections 363, 366, 376 I.P.C. and Section 6 Protection of Children from Sexual Offences Act, P.S. Karvi Kotwali Nagar, District Chitrakoot.
3. As per contents of first information report, incident is said to have taken place on 22.10.2021 when minor daughter of informant is said to have been enticed away by applicant.
4. Learned counsel for applicant submits that applicant has been falsely implicated in the charges levelled against him. It is submitted that prosecutrix in her statement under Section 164 Cr.P.C. has not supported the prosecution version and has specifically stated that she left her house of her own volition and, therefore, it cannot be said that applicant enticed her away from the legal guardianship of her parents. It has been further submitted that during course of trial also, the prosecutrix in her cross-examination has not supported the prosecution version although she had taken a different stand in her examination in chief and as such she cannot be said to be a credible witness. It is submitted that medical examination of the prosectutrix also does not support the allegations levelled against applicant who is in jail since 26.01.2022 and as yet evidence of only P.W. 1 has been completed although there are a total of 12 prosecution witnesses and as such there is no hope of early conclusion of trial.
5. Learned Additional Government Advocate appearing on behalf of State as well as learned counsel for informant have opposed the bail application with submission that the prosecutrix in her examination in chief has clearly supported the prosecution version although she has recanted in her cross-examination.
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 submissions advanced by learned counsel for the parties and upon perusal of the material on record, prima facie, and subject to further evidence being led in trial, it appears that although the prosecutrix supported the prosecution version in her examination-in-chief but earlier in her statement recorded under Section 164 Cr.P.C. as well as in her cross-examination has not supported the prosecution version and as such there is material contradiction in her testimony. The applicant is in jail since 26.01.2022 and as yet there are 11 prosecution witnesses remaining to be examined. As such, without expressing any opinion on the merits of case, this Court finds, the applicant is entitled to be released on bail in this case.
8. Accordingly bail application is allowed.
9. Let applicant Diwakar @ Khunnu, 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 :- 3.11.2022
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