Atul Mishra vs State Of U.P. And Another
2022 Latest Caselaw 16457 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 65
 

 
Case :- CRIMINAL APPEAL No. - 4907 of 2022
 

 
Appellant :- Atul Mishra
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Rajesh Pratap Singh,Jayant Kumar
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Jayant Kumar, learned counsel for the appellant, Shri Rajesh Kumar Sachan, learned A.G.A. for the State and perused the material on record. Despite service of notice upon second respondent, none has appeared.

The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant, Atul Mishra, to set aside the impugned order dated 14.06.2022, whereby the Special Judge (SC/ST Act), Banda has rejected the bail application of the appellant moved by him in Case Crime No. 57 of 2021, under Sections 366, 376-D, 324, 328, 323, 506, IPC and Section 3(2) (v) of the SC/ST Act, Police Station Kalinjar, District Banda.

Brief facts of the case are that the first information report dated 09.07.2021 has been lodged by mother the victim against two named persons and unknown driver of four wheeler under Sections 366, 376-D, 342, 328, 323, 506, IPC and Section 3(2)(v) of the SC/ST Act, stating therein that the marriage of the first informant was solemnized 7 years prior to the incident with one Mithun Kumar, resident of Chagriha Purva Ansh Naugava, out of this wedlock one girl was born. On 18.06.2021, at about 7:00 P.M. when she went to ease herself out of her matrimonial house, named co-accused Deepak forcibly dragged her in a four wheeler on the point of country made pistol and threatened to kill her and her husband if she would raise an alarm. It is further alleged that co-accused Deepak gave her some poisonous drug due to which she became unconscious. When she woke up, she found herself at Satna and thereafter, she went to Jabalpur by train and stayed there for one night. Thereafter, co-accused Deepak took her to Gujarat where he repeatedly committed rape her and assaulted her when she opposed to do. It is further alleged that after 10 days, co-accused Deepak took her to Banda, where she went to Barcha Chowki and on her calls, her husband, father-in-law and brother-in-law came there. It is further alleged that when she came to Banda, brother of Deepak took her to Chitrakoot and kept her for two days at some unknown place in Madhya Pradesh, where she was forced to take divorce from her husband. She further alleged that she wants to live with her husband and not with Deepak.

After lodging the first information report, statement of the victim under Section 161, Cr.P.C. was recorded on 11.07.2022. The victim was medically examined on 10.07.2021. Statement of the victim under Section 164, Cr.P.C. was recorded on 16.07.2021. After recording the statements of the other prosecution witnesses, charge sheet has been submitted firstly against the Deepak Kumar Kushwaha and thereafter against the appellant. The appellant was arrested on 11.04.2022.

Learned counsel for the appellant submits that the appellant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that the appellant was not named in the first Information Report. It is further submitted that the name of the appellant came into light in the confessional statement of owner of the driver of the vehicle. It is further submitted that first information report has been lodged after 21 days of the alleged incident. It is further submitted that victim was major at the time of the alleged incident. It is further submitted that victim travelled with the co-accused Deepak Kumar Kushwaha to Satna, Jabalpur and then to Gujarat by public transport. It is further submitted that the victim has not supported the prosecution case in her statement recorded as P.W.-1 before the trial and she was declared hostile.

It is further submitted that co-accused Dinesh Sonkar having similar role was granted bail by a Coordiante Bench of this Court vide order dated 10.08.2022 in Criminal Misc. Bail Application No. 34533 of 2022 and the appellant is also entitled to bail on the ground of parity.

It is further submitted that the appellant is languishing in jail since 11.04.2022. The appellant has no criminal history.

It is further submitted that there is no possibility of the appellant of fleeing away after being released on bail or tampering with the witnesses. In case the appellant is enlarged 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. 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 appellant is not named in the F.I.R.;

(b) victim was major at the time of the alleged incident;

(c) victim has not supported the prosecution case in her statement as P.W.1 before the trial court and was declared hostile;

(d) There is material contradiction/improvement between the statements of the victim recorded under Section 161 & 164, Cr.P.C. It would not be appropriate to discuss the same at this stage;

(e) Co-accused Dinesh Sonkar having similar role was granted bail by a Coordiante Bench of this 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 criminal appeal is allowed and impugned order dated 14.06.2022 is set aside.

Let appellant/applicant, Atul Mishra, 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/endeavour 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 :- 10.11.2022

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