Allahabad High Court
Mukesh vs State Of U.P. And 3 Others on 29 November, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31456 of 2022
Applicant :- Mukesh
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Narayan Singh(Kushwaha)
Counsel for Opposite Party :- G.A.
Hon'ble Manish Mathur,J.
1. Learned counsel for applicant submits that only in the prayer clause of the bail application, the case crime number has been wrongly indicated. Learned counsel for applicant is granted liberty to correct the same during course of day.
1A. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State and perused the record. As per report by Chief Judicial Magistrate concerned dated 28th September, 2022, notices have been served personally upon the informant but no one has appeared on her behalf.
2. This first bail application has been filed with regard to Case Crime No. 28 of 2022 under Sections 363, 376Da IPC and under Section 5(Tha)/6 Protection of Children from Sexual Offences Act, 2012, P.S. Jasrathpur, District Etah.
3. As per contents of FIR, the incident is said to have taken place on 7th March, 2022 when the minor daughter of the informant was allegedly raped by co-accused Mukesh with the active participation of the applicant in facilitating the same.
4. Learned counsel for applicant submits that the applicant has been falsely implicated in the charges levelled against him which could be amply proved by the fact that there is material contradiction in the statement of applicant under Sections 161 and 164 Cr.P.C. particularly with regard to involvement of applicant in which she has taken a different stand in the statement under section 164 Cr.P.C. in which for the first time she has levelled allegation of rape against the applicant as well. It is submitted that medical report does not support the allegations levelled against the applicant. It is also submitted that co-accused Shivam and Vipin alias Vikki have been admitted to bail by co-ordinate Benches of this Court in Criminal Misc. Bail Application Nos. 33084/2022 and 30334/2022 respectively. The applicant is in jail since 17th April, 2022 with only charge sheet having been filed.
5. Learned A.G.A. appearing on behalf of State has opposed bail application with the submission that statement of prosecutrix under Section 164 Cr.P.C. clearly makes out a cognizable offence against the applicant.
6. Considering submissions advanced by learned counsel for parties and upon perusal of material on record, prima facie subject to evidence led in trial, it appears that statement of prosecutrix under Section 161 Cr.P.C. is in conformity with the F.I.R. without any role being for the applicant in having raped the prosecutrix. The primary gist of allegations is on the co-accused Mukesh. There appears to be material contradiction in the statement of prosecutrix under Sections 161 and 164 Cr.P.C. The medical report also does not support the allegations levelled against the applicant. Co-accused Shivam and Vipin alias Vikki have already been admitted to bail as indicated herein above. The applicant is in jail since 17th April, 2022 with only charge sheet having been filed.
7. 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."
8. Looking to the nature of allegations levelled against the applicant and submission made in the bail application, without expressing any opinion on the merits of case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, particularly since no reasonable apprehension of tampering with the witnesses has been alleged, prima facie, this Court finds, the applicant is entitled to be released on bail in this case.
9. Accordingly bail application is allowed.
10. Let applicant Mukesh 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.
Order Date :- 29.11.2022
Prabhat
