Jainul Alias Nikki vs State Of U.P. And 3 Others
2022 Latest Caselaw 18557 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 71
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25009 of 2022
 

 
Applicant :- Jainul Alias Nikki
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Mazhar Abbas Zaidi,Basharat Ali Khan,Manju Pandey,Salman Ahmad,Sunil Kumar Yadav
 
Counsel for Opposite Party :- G.A.,Kuldeep Kumar
 

 
Hon'ble Manish Mathur,J.

1. Supplementary and rejoinder affidavits are taken on record.

1A. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State, learned counsel for informant and perused the record.

2. This first bail application has been filed with regard to Case Crime No.0242 of 2022, under Sections 328, 376(2) (i), 506 I.P.C. and 3/4, Protection of Children from Sexual Offences Act, P.S. Kotwali Shahar, District Bulandshahar.

3. As per contents of first information report, the incident is said to have taken place on 12.03.2022 when applicant and co-accused are said to have administered an intoxicating product to the prosecutrix and her daughter due to which they became unconscious whereafter the applicant allegedly committed rape upon the prosecutrix and her daughter. Threats were also issued to them both.

4. Learned counsel for applicant submits that applicant has been falsely implicated in the charges levelled against him which would be evident from the fact that F.I.R. has been lodged only on 30.03.2022 whereas the incident is said to have taken place on 12.03.2022. There is no cogent explanation for the delay. It is submitted that the prosecutrix as well as her daughter refused to get themselves medically examined internally and the external medical examination report does not corroborate the charges levelled against applicant. It is further submitted that even the statements of prosecutrix and her daughter recorded under Sections 164 Cr.P.C. are materially contradictory. It is submitted that as such except for the statement of prosecutrix and her daughter, there is no other corroborating evidence against applicant, who is in custody since 31.03.2022 with only charge sheet having been filed.

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 delay in lodging the F.I.R. is easily explained in the F.I.R. itself to the extent that husband of prosecutrix is living outside India and owing to threats being extended to the prosecutix by applicant, she was scared enough not to lodge the F.I.R. immediately. It is submitted that there was connivance between the Investigating Officer and the doctor concerned due to which it was incorrectly indicated that neither prosecutrix nor her daughter wished internal Medical Examination. Learned counsel for informant has placed reliance on judgments rendered by Hon'ble the Supreme Court in Santosh Prasad @ Santosh Kumar v. State of Bihar, reported in (2020) 3 SCC 443 and Ram Singh alias Chhaju v. State of Himachal Pradesh reported in (2010) 2 SCC 445 to submit that mere statement of prosecutrix is enough to secure conviction.

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 F.I.R. has been lodged after considerable delay. Except for the statement of threat being extended, there is no other cogent explanation as to why it could not have been lodged earlier. Medical Examination report does not appear to support the prosecution version and as such, at this stage, except for the statements of prosecutrix and her minor daughter, there is no other corroborating evidence on record. There also appear to be certain contradictions in the statements of prosecutrix and her daughter regarding the incident. In the decisions referred to herein above, it is apparent that although conviction can be based solely on the statement of the prosecutrix but the same is to take place in the rarest event where the statement is of sterling quality and inspires confidence to an extent that no other corroborating evidence is required. The evidentiary value for recording conviction solely on statements of the prosecutrix as such are a matter of evidence to be looked into by the trial court and no comments thereupon can be made at this stage. It also appears from a copy of case diary that even after the alleged incident, there has been telephonic talk between the prosecutrix and the accused as many as 42 times as recorded in C.D. no.12. The applicant is in jail since 31.03.2022 with only charge sheet having been filed till date. 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 Jainul Alias Nikki, 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.

(vi) The applicant shall not make any effort whatsoever to have any contact with the prosecutrix or her daughter.

Order Date :- 23.11.2022

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