Amarjeet Sahani vs State Of U.P. And Another
2022 Latest Caselaw 19100 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 65
 

 
Case :- CRIMINAL APPEAL No. - 5322 of 2022
 

 
Appellant :- Amarjeet Sahani
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Rajiv Dwivedi,Gaurav Nishad
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Gaurav Nishad, learned counsel for the appellant, Shri Virendra Kumar Tripathi, learned A.G.A. for the State and perused the material on record. Despite service of notice upon second respondent, none has appeared on behalf of the second respondent.

The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant, Amarjeet Sahani, to set aside the impugned order dated 19.07.2022, whereby the Special Judge (SC/ST Act), Ghazipur has rejected the bail application No. 1650 of 2022 of the appellant moved by him in Case Crime No. 308 of 2019 under Sections 354, 376, 511 IPC and Section 3(2)(va) of SC/ST Act, Police Station Kashimabad, District Ghazipur.

Brief facts of the case are that the first information report dated 23.11.2019 has been lodged by husband of the victim against the appellant and one other co-accused Mahesh, who is uncle of the appellant on the basis of an application under Section 156 (3) Cr.P.C. under Sections 354, 376, 506, IPC alleging therein that on 03.10.2019 when the first informant went out of house for mason work but could not return to his house on that day. Taking advantage of his absence at house, on that day, 03.10.2019 at about 10.00 pm, when his wife was sleeping in his house, appellant along with co-accused Mahesh entered into his house and pressed her breasts and on her objection, the appellant after shutting her mouth, committed rape with her. hearing his cry, his parent rushed on the spot and he abused him with caste derogatory words and threatened him with dire consequences.

After lodging the first information report, Medical examination of the victim was conducted on 23.11.2019 at about 1.15 pm., statement of the victim under Section 161 Cr.P.C. was recorded on 17.12.2019. Statement of the victim under Section 164, Cr.P.C. was recorded on 07.02.2020. After recording the statements of the other prosecution witnesses, charge sheet has been submitted against the appellant on 30.06.2020. The appellant was arrested on 13.07.2022.

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 the appellant filed Criminal Misc. Writ Petition No. 6107 of 2020 and the Division Bench of this Court stayed the arrest of the appellant till the submission of the police report under section 173(3) Cr.PC. It is further submitted that the victim was a married 26 old lady. It is further submitted that co-accused Mahesh Sahani was granted bail in Criminal Appeal No. 5915 of 2021 by coordinate Bench of this Court vide order dated 07.02.2022. It is further submitted that the First Information Report dated 23.11.2019 had been lodged against the appellant and other co-accused Mahesh under section 354, 376 and 506 I.P.C. but later on Section 511 I.P.C and Section 3(2)(va) of SC/ST Act were added. It is further submitted that the impugned F.I.R. is counterblast to the F.I.R., registered against the father of the victim by the sister of the appellant as case crime no.74 of 2019 under section 353, 376, 504 I.P.C. and section 3(2)(va) of S.C/S.T. Act in which charge sheet had been submitted on 16.03.2022. It is further submitted that the appellant is languishing in jail since 13.07.2022. 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 Sessions court 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 a married lady of 26 years old major at the time of the lodging of the FIR;

(b) Impugned F.I.R is counterblast to the F.I.R. arising out of case no. 72 of 2019 which was lodged by the sister of the appellant.

(c) There are material contradiction/improvement between the allegation of F.I.R. and the statements of the victim under section 161 and 164 Cr.P.C. It would not be appropriate to discuss the same at this stage.

(d) The co-accused Mahesh granted bail by co-ordinate bench of this court in criminal appeal no. 5915 of 2021, vide order dated 7.2.2022.

(e) In Criminal Writ Petition No. 6107 of 2020 wherein a Division Bench of this court stayed the arrest of the appellant till the submission of chargesheet.

(f) The appellant is languishing in jail since 13.7.2022.

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 19.07.2022 is set aside.

Let appellant/applicant, Amarjeet Sahani, 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 :- 29.11.2022

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