Chhotkau @ Sri Keshan vs State Of U.P. And Another
2022 Latest Caselaw 16657 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 65
 

 
Case :- CRIMINAL APPEAL No. - 1686 of 2022
 

 
Appellant :- Chhotkau @ Sri Keshan
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Manvendra Singh
 
Counsel for Respondent :- G.A.,Maya Ram
 

 
Hon'ble Sanjay Kumar Pachori,J.

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

Heard Shri Manvendra Singh, learned counsel for the appellant, Shri Om Prakash Dwivedi, learned A.G.A. for the State and perused the material on record. None appears for the opposite party No. 2 even in the revised call.

The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant Chhotkau @ Sri Keshan to set aside the impugned order dated 25.2.2022, whereby the Special Judge (SC/ST Act), Fatehpur has rejected the bail application No. 311 of 2022 of the appellant moved by him in Case Crime No. 405 of 2015, under Sections 376, 392, 504, 506, IPC and Section 3(2)(v) of SC/ST Act, Police Station Bindki, District Fatehpur.

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 first information report dated 12.11.2015 was lodged by the victim against the appellant and his father on the basis of an application under Section 156(3), Cr.P.C. It is further submitted that after completing the investigation, Final Report (Closure Report) was submitted. It is further submitted that the victim is opposite party No. 2 and she has filed a protest petition, which was treated as complaint case and vide order dated 29.1.2020, appellant and his father were summoned in the present matter.

It is further submitted that the first information report dated 12.11.2015 has been lodged under Sections 376, 392, 504, 506, IPC and Section 3(2)(v) of SC/ST Act on the basis of an application under Section 156(3), Cr.P.C. As per allegation of first information report, incident took place on 3.6.2015 at about 7.40 a.m. near the wine shop. It is further submitted that it is highly improbable that in front of his father the appellant committed offence of rape with the victim. It is further submitted that the victim was 45 years old at the time of the incident having five children and due to village election the appellant has been implicated. It is further submitted that co-accused Kamta Tiwari was granted bail by a Coordinate Bench of this Court vide order dated 28.9.2022 in Criminal Appeal No. 2302 of 2022. It is further submitted that the appellant is languishing in jail since 31.1.2022. The appellant has explained criminal history of three cases in para No. 2 of the supplementary affidavit, which are related to Section 60, Excise Act, Section 25 Arms Act and Section 323, 504, 506, 427, IPC and in all the cases he has been released on bail by the court below.

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) First information report has been lodged on the basis of an application under Section 156(3), Cr.P.C. and after completing the investigation, Final Report had been submitted;

(b) Vide order dated 29.1.2020, appellant and his father were summoned in the present matter;

(c) The incident took place on 3.6.2015 at 7.40 a.m. near a wine shop;

(d) Other co-accused Kamta Tiwari (father of the appellant) was granted bail by a Coordinate Bench of this Court vide order dated 28.9.2022 in Criminal Appeal No. 2302 of 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 25.2.2022 is set aside.

Let appellant/applicant, Chhotkau @ Sri Keshan 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