Allahabad High Court
Akash vs State Of U.P. on 19 October, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38645 of 2022
Applicant :- Akash
Opposite Party :- State of U.P.
Counsel for Applicant :- Anil Kumar Pandey
Counsel for Opposite Party :- G.A.
Hon'ble Manish Mathur,J.
1. Power on behalf of informant has been filed by Mr. Mahesh Kumar Kuntal, which is taken on record. Mr. Amit Kumar Singh, Advocate holding brief for Mr. Mahesh Kumar Kuntal, learned counsel for informant submits that sometime may be granted for filing of counter affidavit. However since learned AGA has complete instructions in the matter, the bail application is being heard today itself.
1A. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State as well as learned counsel for informant and perused the record.
2. This first bail application has been filed with regard to Case Crime No.202 of 2022, under Sections 376D, 506 IPC, registered at Police Station Baldev, District Mathura.
3. As per contents of FIR, the incident is said to have taken place on 29.05.2022 and the applicant alongwith co-accused Satyaveer is said to have caught hold of the prosecutrix when she had gone out to answer the call of nature. The FIR states that the prosecutrix immediately fainted and when she became conscious, she found that she was without any clothes and as such the FIR has been lodged.
4. Learned counsel for applicant submits that the applicant has been falsely implicated in the charges levelled against him. It is submitted that although under Section 376-D has imputed against the applicant but neither in the FIR nor even in the statements of prosecutrix recorded under sections 161 Cr.P.C. has any allegation of rape being made against the applicant. It is submitted that even the medical report does not corroborate the allegations levelled in the FIR which even otherwise has been lodged after about three days without any cogent explanation for same. Learned counsel has also submitted that the allegation of rape has been made for the first time in the statement of prosecutrix under section 164 Cr.P.C. but has also drawn attention to the fact that subsequently after investigation, final report has been submitted with regard to co-accused Satyaveer although virtually identical allegations have been made against him.
5. Learned Additional Government Advocate appearing on behalf of State and Mr. Amit Kumar Singh, Advocate holding brief for Mr. Mahesh Kumar Kuntal, learned counsel for informant have opposed the bail application with the submission that the statement of prosecutrix recorded under Section 164 Cr.P.C. clearly corroborates the charges levelled against the applicant.
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 parties and upon perusal of material available on record, it appears that in the FIR as well as in the statement of prosecutrix recorded under Section 161 Cr.P.C, no specific allegation of rape has been made against the accused. It is only in the subsequent statement recorded under Section 164 Cr.P.C. that allegation of rape has been made against both the accused but inexplicably final report has been filed against co-accused Satyaveer in the matter. The medical report also does not appear to corroborate the charges levelled against the applicant there also does not appear to be any cogent explanation for lodging of FIR after three days of the incident. The applicant is in jail since 15.06.2022 and as yet only charge-sheet has been filed.
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, Akash, 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 :- 19.10.2022
Subodh/-
