Jaldeep vs State Of U.P. And Another
2022 Latest Caselaw 19088 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 65
 

 
Case :- CRIMINAL APPEAL No. - 5218 of 2022
 

 
Appellant :- Jaldeep
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Rajesh Kumar Pandey
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Rajesh Kumar Pandey, learned counsel for the appellant and Shri Rajesh Kumar Sachan, learned A.G.A. for the State. Despite service of notice upon second respondent, no one 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, Jaldeep, to set aside the impugned order dated 22.07.2022 whereby the Special Judge SC/ST Act (P.A.) Act has rejected the bail application No. 3430 of 2022 of the appellant moved by him in Case Crime No. 424 of 2022, under Sections 366, 376 I.P.C. and Section 3(2)(v), of SC/ST Act, Police Station- Sikandrabad District- Bulandshahr.

Brief facts of the case are that the first information report dated 11.05.2022 was lodged by the mother of the victim against the appellant and other co-accused Poonam under Sections 363, 366, 376 of I.P.C. and Section 3(2)(va), of SC/ST Act, stating that one year prior to the incident, she was staying alongwith her daughter in a rented room in the house of Pappu, Co-accused Poonam (Mami of the appellant) was residing as tenant in the same house. The appellant used to visit the room of his Mami. First informant was working as labour in a factory at Noida. On 23.03.2022, when the victim was alone in the room at about 10.00 pm., the appellant entered into her room and forcibly committed rape with her. On 24.03.2022, the appellant and co-accused Poonam brought her daughter to Bulandshahr to see fair, where they solemnized marriage of her daughter in Arya Samaj Temple with co-accused Jaldeep and committed rape with her daughter and abused her with caste derogatory words and on 06.04.2022 at about 06:00 P.M. her daughter escaped from the clutches of the appellant.

After lodging the first information report, statement of the victim under Section 161 Cr.P.C. was recorded on 16.5.2022. Medical examination of the victim was also conducted on 16.05.2022. Statement of the victim under Section 164, Cr.P.C. was recorded on 22.05.2022. After recording the statements of the other prosecution witnesses, charge sheet has been submitted against the appellant under Sections 366, 120-B I.P.C. and Section 3(2)(v), of SC/ST Act and other co-accused Poonam. The appellant was arrested on 07.07.2022.

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 as per statements of the victim recorded under Sections 161 and 164 of Cr.P.C., in which she stated that she was 21 years old at the time of the incident. It is further submitted that as per prosecution case, victim was solemnized marriage firstly alleged that in Arya Samaj Temple, secondly she stated that she solemnized marriage with the appellant as a court marriage, after obtaining her signed on a blank paper. It is further submitted that the victim resided in the house of the appellant since 24.03.2022 to 06.04.2022. It is further submitted that co- accused Poonam has already been granted bail by this Bench in Criminal Appeal of 5221 of 2021 vide order dated 15.11.2022. It is further submitted that offence punishable under Section 366 of I.P.C. is not made out against the appellant.

It is further submitted that the appellant is languishing in jail since 07.07.2022. 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) The victim was major at the time of the incident;

(b) There is material contradiction/improvement between the allegations of the F.I.R. as well as statements of the victim recorded under Section 161 & 164, Cr.P.C. it would not be appropriate to discuss the same at this stage;

(c) Mother of the victim stated that the appellant solemnized marriage with the victim in Arya Samaj Temple;

(d) the appellant was languishing in Jail since 07.07.2022.

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 22.07.2022 is set aside.

Let appellant/applicant, Jaldeep, be released on bail in the aforesaid case crime number on her 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 her 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 she 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 her 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 :- 29.11.2022

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