Allahabad High Court
Sagar @ Subham Kushwaha vs State Of U.P. And Another on 31 October, 2022
Bench: Sanjay Kumar Pachori
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 65
Case :- CRIMINAL APPEAL No. - 5383 of 2022
Appellant :- Sagar @ Subham Kushwaha
Respondent :- State of U.P. and Another
Counsel for Appellant :- Azad Khan
Counsel for Respondent :- G.A.,Vijay Bahadur Shivhare
Hon'ble Sanjay Kumar Pachori,J.
Heard Shri Azad Khan, learned counsel for the appellant and Shri Ravindra Kumar Singh, learned A.G.A. for the State. None appears for O.P. No. 2 even in the revised call.
The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant to set aside the impugned order dated 27.5.2022, whereby the Special Judge (SC/ST Act), Hamirpur has rejected the bail application No. 639 of 2022 of the appellant moved by him in Case Crime No. 120 of 2022, under Sections 376(2)N, 504, 506, IPC and Section 3(2)(v), 3(2)(va) and 3(1)(dha) of SC/ST Act, Police Station Samerpur, District Hamirpur.
Brief facts of the case are that the first information report dated 4.7.2022 has been lodged by the victim stating that after sad demise of her husband prior to one year and six months the appellant developed love affairs with the victim and made physical relations with her by which she became pregnant. After that on false promise of marriage, he made physical relations with her and one girl child was born about one month prior to lodging of the first information report. The appellant promised to marry with her. On 1.4.2022 in the evening when she asked for marriage, then he abused her by using caste derogatory words and threatened with dire consequences.
After lodging the first information report, statement of the victim under Section 161, Cr.P.C. was recorded on 8.4.2022. The victim was medically examined on 8.4.2022. Statement of the victim under Section 164, Cr.P.C. was recorded on 20.4.2022. After recording the statements of the other prosecution witnesses, charge sheet has been submitted against the appellant. The appellant was arrested on 9.4.2022.
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 consent of the victim is not immediate effect of the false promise of marriage. It is further submitted that as per allegation of FIR as well as statements of the victim recorded under Sections 161 and 164, Cr.P.C. the victim had love affairs with the appellant for a year. It is further submitted that the victim solemnized second marriage with other person Sandeep by notarized affidavit. It is further submitted that the appellant is languishing in jail since 9.4.2022. 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) As per allegation of FIR as well as statements of the victim recorded under Sections 161 and 164, Cr.P.C., the victim had love affairs with the appellant for a year;
(b) Victim solemnized second marriage with other person Sandeep by notarized affidavit;
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 27.5.2022 is set aside.
Let appellant/applicant, Sagar @ Subham Kushwaha 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 :- 31.10.2022
T. Sinha
