Rahul Kori @ Nikhil vs State Of U.P.
2023 Latest Caselaw 9723 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                Reserved On:- 28.03.2023  
 
  Delivered On:- 04.04.2023  
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11722 of 2023 
 
Applicant :- Rahul Kori @ Nikhil 
 
Opposite Party :- State of U.P. 
 
Counsel for Applicant :- Dev Raj Singh,Sunita Chauhan 
 
Counsel for Opposite Party :- G.A.,Ray Sahab Yadav  
 
Hon'ble Siddharth, J.

1. Heard Ms. Sunita Chauhan, learned counsel for the applicant; Sri Ray Sahab Yadav, learned counsel for the aggrieved party and learned A.G.A for the State.

2. The applicant has been implicated in this case on the basis of his implication in two cases, are as follows:-

(i) Case Crime No. 89 of 2021, under Section 376/506 IPC and ¾ POCSO Act, Police Station- Friends Colony, District- Etawah.

(ii) Case Crime No. 86 of 2022, under Section 147/504, 506 IPC, Police Station- Civil Line, District- Etawah.

3. Counsel for the applicant submits that the applicant is on bail in both the cases. Apart from the two cases shown in the gang chart, the applicant has criminal history of 8 more cases which are as follows :-

(i) Case Crime No. 411 of 2012, under Section 336, 427 IPC and 7 Criminal Law Amendment Act, Police Station- Civil Line, District- Etawah.

(ii) Case Crime No. 412 of 2012, under Sections- 336, 427 IPC and 7 Criminal Law Amendment Act, Police Station- Civil Line, District- Etawah.

(iii) Case Crime No. 413 of 2012, under Section 336, 427 IPC and 7 Criminal Law Amendment Act, Police Station- Kotwali, District- Etawah.

(iv) Case Crime No. 454 of 2012, under Section 336, 427 IPC and 7 Criminal Law Amendment Act, Police Station- Kotwali, District- Etawah.

(v) Case Crime No. 455 of 2012, under Section 336, 427 IPC and 7 Criminal Law Amendment Act, Police Station- Kotwali, District- Etawah.

(vi) Case Crime No. 314 of 2013, under Section 307, 352, 506 IPC, Police Station- Quarsi, District- Aligarh, in which the applicant was granted bail by the Juvenile Justice Board, Aligarh vide its order dated 10.07.2013.

(vii) Case Crime No. 392 of 2013, under Section 307, 147, 506 IPC, Police Station- Civil Lines, District Etawah, in which the final report in favour of applicant and has exonerated his name from charge sheet dated 31.01.2014.

(viii) Case Crime No. 652 of 2016, under Section 3/25 Arms Act, Police Station- Kotwali, District- Etawah, in which the applicant has been granted bail by the learned court below vide its order dated 23.09.2016.

4. Counsel for the applicant has submitted that the applicant has been falsely implicated in this cases by the police on account of ulterior motive.

5. Learned A.G.A has opposed the bail application of the applicant.

6. Sri Ray Sahab Yadav, has put in appearance in this case on behalf of an aggrieved party, Smt. Seema, who claims herself to be victim of Case Crime No. 89 of 2021, under Section 376/506 IPC and ¾ POCSO Act.

7. Counsel for the aforesaid aggrieved person, Smt. Seema, has relied upon the judgment of this Court in the case of Ramesh Rai @ Matru Rai vs. State of U.P., passed in Criminal Misc. Bail Application No. 46497 of 2022 wherein this Court has held that the term "victim" cannot be taken to be synonym of the terms "complainant" or "informant" and victim need not before complainant of offence. This Court has held that victim has right to oppose the bail in the offence alleged under the Gangsters Act when she was also a victim in the case which forms the subject matter of Gangsters Act.

8. He has further submitted that the applicant has been granted bail by this Court on the basis of party with co-accused, Ram Ji Batham. The bail application of co-accused, Ram Ji Batham, has been cancelled by the court below on 18.05.2022 because he was compelling the aggrieved, Smt. Seema and Arvind @ Vishal, to enter into compromise and they were beaten by them and FIR was lodged as Case Crime No. 09 of 2022, under Section 504/506 IPC. The applicant is alleged to have criminal history of 11 cases.

9. After hearing the rival contentions, this Court finds that the bail of co-accused, Ram Ji Batham, has been cancelled by the Court below on the allegations that he was violating the conditions of bail. The bail of the applicant has not been cancelled nor any bail cancellation application has been filed against him by the aggrieved, Smt. Seema. Merely because the co-accused misused the liberty of bail and the bail granted to co-accused has been cancelled, the applicant cannot be denied bail in the case under Gangsters Act. In case, the aggrieved person had any grievance against the applicant, she could have applied for cancellation of bail of the applicant also which she has not done. Unless the potential threat to the victim is proved before the Court below, no benefit of the judgment of the Apex Court in the case of Sudha Singh vs. State of U.P. and Another, 2021 (4) SCC 781, can accrue to her.

10. Keeping in view the nature of the offence, evidence, complicity of the accused; submissions of the learned counsel for the parties noted above; finding force in the submissions made by the learned counsel for the applicant; keeping view the uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicants being under-trial having fundamental right to speedy trial; larger mandate of the Article 21 of the Constitution of India; considering the dictum of Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021; considering 5-6 times overcrowding in jails over and above their capacity by the under trials and without expressing any opinion on the merits of the case, the Court is of the view that the applicants have made out a case for bail. The bail application is allowed.

11. Let the applicant, Rahul Kori @ Nikhil, involved in Case Crime No. 354 of 2022, under Section 2/3 of U.P. Gangster and Anti-Social Activities (Prevention) Act, Police Station- Friends Colony, District- Etawah, 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 subject to following conditions. Further, before issuing the release order, the sureties be verified.

(i) The applicant shall not tamper with the evidence or threaten the witnesses.

(ii) 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.

(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.

(iv) 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 applicants fail 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.

(v) 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.

In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.

Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

Trial court is directed to conclude the trial of the applicant as expeditiously as possible preferably within a period of one year from the date of production of certified copy of this order.

Registrar (compliance) is directed to communicate this order to the trial Court for necessary compliance within a week.

Order Date :- 04.04.2023

Rohit