Allahabad High Court
Ankit vs State Of U.P. And Another on 14 September, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11688 of 2022
Applicant :- Ankit
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Ravi Chandra Srivastava,Priyavrat Tripathi
Counsel for Opposite Party :- G.A.
Hon'ble Manish Mathur,J.
1. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State and perused the record.
2. Second bail application has been filed with regard to Case Crime No. 81 of 2020 under Sections 363, 366, 376 IPC and 3/4 POCSO Act, P.S. Thana Bhawan, District Shamli which first bail application having been rejected on 26th March, 2021 by His Lordship Hon'ble Justice Umesh Kumar who has subsequently demitted the office and therefore this case has been listed before this Court as per roster.
3. As per contents of FIR, the applicant had allegedly enticed the minor daughter of informant from the legal guardianship of her parents.
4. Learned counsel for applicant submits that although first bail application had been rejected on merits but subsequently statement of informant and the alleged victim being P.W.1 and P.W.4 respectively were recorded in which they have not supported the prosecution's case and have in fact been declared hostile. It is submitted that the applicant is in jail since 20th June, 2020 and due to this fresh subsequent event, he is liable to be enlarged on bail.
5. Learned A.G.A. appearing on behalf of State upon instructions has opposed bail application but does not dispute the fact that the informant as well as the victim have been declared hostile.
6. The scope of consideration of second bail application has already been enunciated by Hon'ble Supreme Court in the case of Ram Govind Upadhyay v. Sudarshan Singh reported in (2002)3 SCC 598 holding that in regard to cases where earlier bail applications have been rejected there is a further onus on the court to consider the subsequent application for grant of bail by noticing the grounds on which earlier bail applications have been rejected and after such consideration if the court is of the opinion that bail has to be granted then the said court will have to give specific reasons why in spite of such earlier rejection the subsequent application for bail should be granted.
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. Considering the subsequent fact that the main witness of fact that is the informant and the victim have not supported the prosecution story and have been declared hostile, this Court finds that the applicant is entitled to bail since the applicant is under incarceration since 20th June, 2020 and due to the subsequent event, there is no direct or indirect evidence at this stage against him.
9. Accordingly bail application is allowed.
10. Let applicant Ankit 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 :- 14.9.2022
Prabhat
