Harishchandra Nishad vs State Of U.P. And Another
2022 Latest Caselaw 15144 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 65
 

 
Case :- CRIMINAL APPEAL No. - 3706 of 2022
 

 
Appellant :- Harishchandra Nishad
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Deepak Kumar Tripathi
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Deepak Kumar Tripathi, learned counsel for the appellant and Shri Om Prakash Dwivedi, learned A.G.A. for the State.

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 20.4.2022, whereby the Special Judge (SC/ST Act), Sant Kabir Nagar has rejected the bail application No. 342 of 2022 of the appellant moved by him in Case Crime No. 80 of 2022, under Sections 354-D, 366, 376(2)N, 501, 503, 504, 506, IPC and Section 3(2)(v), 3(2)(va) and 3(1)(dha) of SC/ST Act and Section 67 Information Technology Act, Police Station Dudhara, District Sant Kabir Nagar.

Brief facts of the case are that the first information report dated 11.3.2022 has been lodged by maternal uncle of the victim against the appellant under Sections 354-D, 366, 504, 506, IPC and Section 3(2)(v), 3(2)(va) and 3(1)(dha) of SC/ST Act stating therein that the appellant has enticed away his minor niece (Bhanji) and forcefully taking her photos and making videos from mobile made them viral on Facebook. When the first informant asked about this from the appellant, he abused him with caste derogatory words and threatened him with dire consequences.

After lodging the first information report, statement of the victim under Section 161, Cr.P.C. was recorded on 12.3.2022. The victim was examined on 12.3.2022. As per medical report, no external injury was found on the body of the victim. Statement of the victim under Section 164, Cr.P.C. was recorded on 16.3.2022. After collecting the radiological report and recording the statements of the other prosecution witnesses, charge sheet has been submitted against the appellant on 1.4.2022. The appellant was arrested on 29.3.2022.

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 in the allegation of the first information report, no date and time of the incident was mentioned. It is further submitted that in the statements of the victim recorded under Sections 161 as well as 164, Cr.P.C., there was no mention of date and time of the incident. It is further submitted that as per High School certificate, the victim was above 18 years at the time of lodging of the FIR. As per radiological age, the victim was 20 years old. It is further submitted that there is material contradictions or improvement between the statements of the victim recorded under Sections 161 & 164, Cr.P.C. It is further submitted that the victim in her statement recorded under Section 161, Cr.P.C. has stated that the appellant took the photographs with her after pouring Sindoor in middle line of her head and on the basis of that photograph he blackmailed her. It is further submitted that the victim has relations with the appellant for three years prior to lodging of the FIR. It is further submitted that the appellant is languishing in jail since 29.3.2022. 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 major at the time of the lodging of the FIR;

(b) No date and time has been mentioned in the first information report and statements of the victim recorded under Sections 161 & 164, Cr.P.C.;

(c) There is material contradiction/improvement between the statements of the victim recorded under Section 161 & 164, Cr.P.C. It would not be appropriate to discuss the same at this stage;

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 20.4.2022 is set aside.

Let appellant/applicant, Harishchandra Nishad 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