Smt Praveen vs State Of U.P. And 3 Others
2023 Latest Caselaw 20378 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:155438
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 47446 of 2022
 

 
Applicant :- Smt Praveen
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Deep Chandra Joshi
 
Counsel for Opposite Party :- G.A.,Umesh Chandra Yadav
 
with
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26473 of 2023
 

 
Applicant :- Sharukh Kha
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Mahendra Kumar Singh Chauhan
 
Counsel for Opposite Party :- G.A.,Umesh Chandra Yadav
 

 

 
Hon'ble Rajeev Misra,J.

1. Supplementary affidavit filed by learned counsel for applicant-Sharukh Kha in court today is taken on record.

2. Heard Mr. Deep Chandra Joshi as well as Mr. Mahendra Kumar Singh Chauhan, the learned counsel for applicants, the learned A.G.A. for State and Mr. Umesh Chandra Yadav, the learned counsel representing first informant/opposite party-2.

3. Perused the record.

4. Instant bail applications have been filed by applicants-Smt Praveen and Sharukh Kha seeking their enlargement on bail in Case Crime No. 247 of 2022 under Sections 376D, 120B, 506, 328, 342 I.P.C. and sections 16/17 POCSO Act, Police Station-Bilari, District-Moradabad, during the pendency of trial.

5. It transpires from record that in respect of an incident, which is alleged to have occurred from 26.05.2022 to 27.05.2022, a delayed F.I.R. dated 13.06.2022 was lodged by first informant namely X (the prosecutrix) and was registered as Case Crime No. 247 of 2022 under Sections 376D, 120B, 506 I.P.C. and sections 5/6 POCSO Act, Police Station-Bilari, District-Moradabad,. In the aforesaid F. I.R., six persons namely Waseem, Shahrukh Khan, Masrul, Tasabbur, Israr and Smt. Praveen have been nominated as named accused.

6. The gravamen of the allegations made in the F.I.R is to the effect that five of the named (male) accused have deliberately and forcibly dislodged the modesty of prosecutrix by committing rape upon her, whereas, the female accused is guilty of sheltering the named male accused.

7. At the very out set the learned A.G.A. submits that co-accused Waseem has been enlarged on bail by this Court vide order dated 13.07.2023 passed in Criminal Misc. Bail Application No. 26978 of 2023 (Waseem Vs. State of U.P. and 3 others). For ready reference the order dated 13.07.2023 is reproduced herein under:

" Heard Shri Mohit Singh, learned counsel for the applicant; Shri Umesh Chandra Yadav, learned counsel for the informant and learned A.G.A.

The instant bail application has been filed on behalf of the applicant, Waseem, with a prayer to release him on bail in Case Crime No.247 of 2022, under Sections 323,328,376-D,506,120-B IPC and section 5/6 POCSO Act Police Station Bilari, District- Moradabad, during pendency of trial.

There is allegation against the applicant of committing offence of rape, and threatening of minor girl after entering into conspiracy with co-accused besides offence under section 5/6 POCSO Act.Learned counsel for the applicant has submitted that prosecution story, alleged in the First Information Report and statments of the victim under section 161 and 164 Cr.P.c. are not consistent .There are major contradictions. Before the trial court the victim has been examined as P.W.1 she has not made any allegation against the applicant but she has made allegation against co-accused, Shahroukh.Applicant has been falsely implicated in this case.Medical report does not support the prosecution case.In the cross examination on behalf of the co-accused Mashroof victim has not made any allegation of rape against the applicant. Prior to the incident there was dispute between the applicant and father of the informant. The applicant is in jail since 17.6.2022 and has no criminal history.

Learned A.G.A. and learned counsel for the informant have opposed the bail prayer of the applicant but could not dispute the aforesaid facts.

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; applicant 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 recent judgment dated 11.07.2022 of the 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 applicant has made out a case for bail. The bail application is allowed

Let the applicant 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.

1. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.

2. The applicant shall cooperate in the trial sincerely without seeking any adjournment.

3. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

4. That 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;

5. The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and 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 to ensure presence of the applicant.

6. 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his 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.

Order Date :- 13.7.2023 "

8..On the above premise, the the learned A.G.A. contends that this Court has recorded a categorical finding in the order dated 13.07.2023 that the main allegation is against co-accused Sharukh Kha, who has filed Criminal Misc. Bail Application No. 26473 of 2023. On the above premise, he submits that case of aforesaid accused i.e. applicant Sharukh kha is not similar and identical to that of bailed out co-accused Waseem. The same are distinguishable. On the above premise, the learned A.G.A. contends that no indulgence be granted by this court in favour of applicant Sharukh Kha.

9. When confronted with above, the learned counsel for applicant Shahrukh Khan could not overcome the same.

10. Even otherwise, the Court finds that applicant-Smt. Praveen is a lady. Therefore, she is entitled to the benefit of the provisions contained in proviso to Section 437 Cr.P.C. Applicant Smt. Praveen is a lady of clean antecedents inasmuch as she has no criminal history to her credit except the present one. Applicant Smt. Praveen is in jail since 13.06.2022 as such she has undergone more than one year of incarceration. The police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted. Therefore the entire evidence sought to be relied upon by the prosecution against applicant stands crystallised. Upto this stage, no such circumstance has emerged on the basis of which it can be said that the custodial arrest of applicant is absolutely necessary during the pendency of trial. He therefore submits that applicant Praveen is liable to be enlarged on bail. In case the applicant-Smt. Parveen is enlarged on bail, she shall not misuse the liberty of bail and shall co-operate with the trial.

11. Having heard the learned counsel for applicant Smt. Praveen, the learned A.G.A. for State, Mr. Umesh Chandra Yadav, the learned counsel representing first informant/opposite party-2 upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant coupled with the fact that main allegation has been levelled by the prosecutrix against applicant Sharukh Kha which fact has also been recorded by this Court in the order dated 13.07.2023 as noted above, thus in view of above and for the facts and reasons recorded in the order dated 13.07.2023 as noted herein above, this Court does not find any good ground to enlarge the applicant Sharukh Kha on bail.

12. Accordingly, bail application of applicant Sharukh Khan fails and is liable to be rejected.

13. Accordingly, bail application of applicant-Sharukh Kha is rejected.

14. In so far the bail application of applicant-Smt. Praveen is concerned, in view of the facts and reasons as noted herein above and also the fact that the charge sheet has already been submitted but the learned A.G.A. could not point out any such circumstance necessitating the custodial arrest of applicant during the pendency of trial, clean antecedents of applicant, period of incarceration undergone, considering the provisions contained in the proviso to Section 437 Cr.P.C. but without making any comments on the merits of the case, applicant-Smt. Praveen has made out a case for bail.

15. Accordingly, the bail application of applicant Smt. Praveen is allowed.

16. Let the applicant-Smt. Praveen involved in aforesaid case crime number be released on bail on her 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) Applicant will not tamper with prosecution evidence.

(ii) Applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.

(iii) Applicant will not indulge in any unlawful activities.

(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.

17. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of applicant and send her to prison

Order Date :- 3.8.2023

YK