Allahabad High Court
Vijay Bhartiya vs State Of U.P. And 3 Others on 31 October, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39828 of 2022
Applicant :- Vijay Bhartiya
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Nikhil Kumar,Vijay Bahadur Maurya
Counsel for Opposite Party :- G.A.,Anoop Kumar Sharma,Vikas Rastogi
Hon'ble Manish Mathur,J.
1. 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.97 of 2022, under Sections 363, 342, 376 IPC and Section 3/4 Protection of Children From Sexual Offences Act, registered at Police Station Puramufti, District Allahabad.
3. As per contents of FIR, which has been lodged against unknown person, the incident is said to have taken place on 11.04.2022 when the daughter of informant went missing. It is stated that subsequently phone call from different numbers came on the mobile phone of the informant's daughter and suspicion has been cast upon person having ownership of the aforesaid mobile regarding his role in the informant's daughter going missing.
4. Learned counsel for applicant submits that the applicant has been falsely implicated in the charges levelled against him particularly since he is not named in the FIR. It is submitted that there is material contradiction in the statement of prosecutrix recorded under sections 161 and 164 Cr.P.C. inasmuch as, the prosecutrix has not named anyone in her statement recorded under section 161 Cr.P.C. and in fact states that she was merely travelling within the city on her own volition. Attention has also been drawn to the fact that prosecutrix has refused the medical examination. It is submitted that due to said facts, a reasonable doubt is cast upon the prosecution story. The applicant is in jail since 01.06.2022 and does not have any previous criminal history.
5. Learned Additional Government Advocate appearing on behalf of State and learned counsel for informant have opposed the bail application with the submission that applicant has been taken into custody on the basis of statement of prosecutrix recorded under section 164 Cr.P.C. and charge-sheet in the matter has already been filed.
6. Considering the submissions advanced by learned counsel for parties and upon perusal of material available on record, it appears that FIR has been lodged against unknown person and applicant has been apprehended on the basis of statement of prosecutrix recorded under section 164 Cr.P.C. but there appears to be material contradiction in her statements recorded under Sections 161 and 164 Cr.P.C. The prosecutrix has also refused the medical examination. The applicant is in jail since 01.06.2022 and as yet only charge-sheet has been filed in the matter.
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, Vijay Bhartiya, 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 :- 31.10.2022
Subodh/-
