Sumit vs State Of U.P. And Another
2022 Latest Caselaw 15161 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 65
 

 
Case :- CRIMINAL APPEAL No. - 4474 of 2022
 

 
Appellant :- Sumit
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Sanjay Vikram Singh,Rakesh Kumar Singh
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Parth Sharma, Advocate holding brief of Shri Sanjay Vikram Singh, learned counsel for the appellant and Shri Ravindra Kumar Singh, learned A.G.A. for the State. Despite service of notice upon son of Opposite Party No. 2, none appears on his behalf.

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 4.5.2022, whereby the Special Judge (SC/ST Act), Aligarh has rejected the bail application No. 1781 of 2022 of the appellant moved by him in Case Crime No. 47 of 2022, under Sections 366, 376, IPC and Section 3(2)(v) of SC/ST Act, Police Station Akbarabad, District Aligarh.

Brief facts of the case are that the first information report dated 22.2.2022 has been lodged by father of the victim against the appellant and other co-accused Ankit (brother of the appellant) under Section 366, IPC stating therein that on 30.1.2022, he has lodged a missing report about his daughter, aged about 27 years narrating the fact that on 29.1.2022 his daughter went to school at about 10.00 a.m., but she did not return. He searched his daughter and came to know that the appellant has enticed away his daughter and the other co-accused helped him in enticing away his daughter.

After lodging the first information report, statement of the victim under Section 161, Cr.P.C. was recorded on 24.2.2022. The victim has denied to get her medical examination done on 24.2.2022. Statement of the victim under Section 164, Cr.P.C. was recorded on 25.2.2022 and second statement of the victim was recorded on 20.3.2022. After recording the statements of the other prosecution witnesses, charge sheet has been submitted against the appellant on 15.4.2022. The Investigating Officer exonerated co-accused Ankit. The appellant was arrested on 4.5.2022.

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 there is material contradictions or improvement between the statements of the victim recorded under Sections 161 & 164, Cr.P.C. and second statement of the victim. It is further submitted that the victim in her statement recorded under Section 161, Cr.P.C. has stated that she went from her home on her own free and sweet will after a dispute with her parents because her parents want to solemnize the marriage of the victim. As per statement of the victim recorded under Section 164, Cr.P.C. as well as other statement, no date and time has been stated with regard to incident relating to offence punishable under Section 375, IPC. It is further submitted that there was enmity between the father of the present appellant and the father of the victim with regard to the land. It is further submitted that the victim has denied to get her medical examination done. It is further submitted that the appellant is languishing in jail since 24.3.2022. 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 27 years old at the time of the incident;

(b) there is material contradictions or improvement between the statements of the victim recorded under Sections 161 & 164, Cr.P.C. and second statement of the victim. It would not be appropriate to discuss the same at this stage;

(c) As per statements of the victim recorded under Section 161 & 164, Cr.P.C. and second statement of the victim, no date has been mentioned about the offence of rape against the applicant;

(d) On the basis of same set of allegation, Investigating Officer has exonerated the co-accused Ankit (real brother of the appellant);

(e) The victim denied to get her medical examination done.

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 4.5.2022 is set aside.

Let appellant/applicant, Sumit 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