Kamal Chandra Singh vs State Of U.P. And Another
2022 Latest Caselaw 16654 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 65
 

 
Case :- CRIMINAL APPEAL No. - 4500 of 2022
 

 
Appellant :- Kamal Chandra Singh
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Manish Yadav,Saurabh Sisodia
 
Counsel for Respondent :- G.A.,Ziya Uddin
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Manish Yadav, learned counsel for the appellant and Shri Ziya Uddin, learned counsel for the respondent no. 2 and Sri Om Prakash Dwivedi, learned A.G.A. for the State.

The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant Kamal Chandra Singh to set aside the impugned order dated 22.06.2022 whereby the Special Judge (SC/ST Act), Allahabad has rejected the bail application No. 2959 of 2022 of the appellant moved by him in Case Crime No. 153 of 2022, under Sections 376(2) (N), 504, 506, 406 I.P.C. and Section 3(2)(v) of SC/ST Act, Police Station Colonelganj District Prayagraj.

Brief facts of the case are that the first information report dated 18.04.2022 was lodged by the victim stating that the appellant used to teach tuition to the victim's children in the year 2017. In the year of 2018, her husband was died and one day at about 06:00 P.M., appellant came to the victim's house to teach tuition to the victim's children at the same time she was alone in the house and appellant has committed rape on her bed and abused her with caste derogatory words and threatened her with dire consequences. He made some videos and taken some photographs and after that the appellant committed rape again and again on the basis of the aforesaid video after sending her children for playing to outside the home and threatened her to viral her video and demanded money and send messages to make physical relations with her.

After lodging the first information report, statement of the victim under Section 161 of Cr.P.C. was recorded on 19.4.2022; medical examination of the victim was conducted on 22.04.2022; statement of the victim under Section 164 of Cr.P.C. was recorded on 29.04.2022. After recording the statements of the other prosecution witnesses, charge sheet has been submitted against the appellant on 14.06.2022. The appellant was arrested on 01.06.2022.

Learned counsel for the appellant submits that the appellant is 28 years old and is innocent and has been falsely implicated in the present case due to ulterior motive. The appellant is preparing for competitive examination and is residing in a rented room in the house of the first informant. The first informant is mother of 2 children and she was consenting party and sent letters and whatsapp messages to the appellant. It is further submitted that there is material contradiction between the allegation of the F.I.R. and statement of the victim recorded under Section 161 and 164 of Cr.P.C. in connection with the first incident of forcibly rape on her. Firstly, she stated that after the death of her husband the appellant made physical relation with her. Secondly, she stated that prior to the death of her husband he made physical relations with her. It is further submitted that the appellant was a consenting party which emerges from several letters and photographs. It is further submitted that the appellant transferred Rs. 80,000/- in her account by Google Pay which have been annexed to the affidavit. It is further submitted that there is no evidence with regard to viral video.

It is further submitted that the appellant is languishing in jail since 01.06.2022. 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 Special Judge 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) There is material contradiction between the allegation of the F.I.R. which was lodged by the victim and statement of the victim recorded under Section 161 and 164 of Cr.P.C., it would not be appropriate to discuss the same at this stage;

(b) There is no evidence with regard to viral video as alleged.

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 22.06.2022 is set aside.

Let appellant/applicant, Kamal Chandra Singh 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

Ishan