Vishanu Bind vs State Of U.P. And Another
2022 Latest Caselaw 16651 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 65
 

 
Case :- CRIMINAL APPEAL No. - 4992 of 2022
 

 
Appellant :- Vishanu Bind
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Satish Chandra Dubey
 
Counsel for Respondent :- G.A.,Shahabuddin,Syed Mohammad Nawaz
 

 
Hon'ble Sanjay Kumar Pachori,J.

Supplementary affidavit filed today by learned counsel for the appellant is taken on record.

Heard Shri Satish Chandra Dubey, learned counsel for the appellant, Shri Om Prakash Dwivedi, learned A.G.A. for the State, Shri Syed Mohammad Nawaz, learned counsel for the opposite party No. 2 and perused the material on record.

The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant Vishanu Bind to set aside the impugned order dated 17.5.2022, whereby the Special Judge (SC/ST Act)/Additional Sessions Judge, Allahabad has rejected the bail application No. 1920 of 2022 of the appellant moved by him in Case Crime No. 781 of 2020, under Sections 376, 323, 504, 506, IPC and Section 3(2)(v) of SC/ST Act, Police Station Mauaima, District Prayagraj.

Brief facts of the case are that the first information report dated 24.10.2020 has been lodged by the victim against the appellant under Sections 406, 323, 504, 506, 354, IPC and Section 3(2)(va) of SC/ST Act stating that the appellant demanded Rs. 32,000/- for purchase of four wheeler Tavera and assured her that she will also have a share in his earnings. The first informant paid the aforesaid amount after taking permission from her husband, but the appellant purchased the vehicle in own name. When she asked for her money back, the appellant called the first informant at Mauaima town on 13.9.2020 at 7.00 p.m. to return the money where he by using filthy language, committed marpeet with her by kicks and fist, behaved indecently and threatened with dire consequences.

After lodging the first information report, statement of the victim under Section 161, Cr.P.C. was recorded on 25.10.2020. The victim denied to get her medical examination done, but on 12.5.2022, the victim was medically examined. Statement of the victim under Section 164, Cr.P.C. was recorded on 21.12.2020. After recording the statements of the other prosecution witnesses, charge sheet has been submitted against the appellant on 31.5.2022. The appellant was arrested on 21.4.2022.

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 there is no allegation with regard to offence of rape in the first information report as well as statement of the victim recorded under Section 161, Cr.P.C. It is further submitted that the first information report has been lodged after about 41 days of the incident. It is further submitted that there is material contradiction between the statements of the victim recorded under Sections 161 and 164, Cr.P.C. Statement of the victim under Section 164, Cr.P.C. was recorded on 21.12.2020 i.e. after about 98 days of the incident and first time she alleged about the offence of rape against the appellant. It is further submitted that the appellant is languishing in jail since 21.4.2022. 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. as well as learned counsel for the opposite party No. 2 has supported the order passed by the Special Judge and vehemently opposed the prayer for grant of bail to the applicant. But they could not point out any material to the contrary. They further submit 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 of the present case was lodged under Sections 406, 323, 504, 506, 354, IPC and Section 3(2)(va) of SC/ST Act;

(b) Statement of the victim under Section 164, Cr.P.C. was recorded after about 98 days of the incident and the victim first time alleged about the offence of rape against the appellant;

(c) The appellant is languishing in jail since 21.4.2022.

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 17.5.2022 is set aside.

Let appellant/applicant, Vishanu Bind 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 :- 11.11.2022

T. Sinha