Shiv Pujan Maurya vs State Of U.P. Thru. Addl. Chief ...
2023 Latest Caselaw 22113 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:54571
 
Court No. - 15
 

 
Case :- CRIMINAL APPEAL No. - 1315 of 2023
 

 
Appellant :- Shiv Pujan Maurya
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Home Deptt. Lko. And Another
 
Counsel for Appellant :- Saurabh Yadava,Hema Singh,Poonam Maurya
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Shamim Ahmed,J.

Heard Ms. Divya, Advocate, holding brief of ShriSaurabh Yadava, learned counsel for the appellant and Shri Sanjay Kumar, learned A.G.A. for the State and perused the entire record.

This Criminal Appeal under Section 14-A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 17.03.2023 passed by the learned Special Judge, S.C./S.T. Act, Ambedkar Nagar in Bail Application No.353/2023, arising out of Case Crime No.05 of 2023, under Sections 376, 506 I.P.C. and Section 3(2)/(V)of S.C./S.T. Act, Police Station Bevana, District Ambedkar Nagar, whereby the bail application of the appellant has been rejected.

In spite of service of notice upon opposite party nos.2 vide office report dated 07.07.2023, no counter affidavit has been filed nor any counsel has appeared on behalf of opposite party No.2, as such, it appears that opposite party No.2 is not interested to contest this case.

Counter affidavit on behalf of the State as well as rejoinder affidavit in reply thereto are being filed today in the Court, which are taken on record.

Since learned counsel for the appellant presses urgency in the matter and the matter pertains to bail, therefore, this Court has no other option but to proceed in the matter for final disposal.

Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case due to enmity and no such incident took place as alleged by the prosecution in the F.I.R. She further submitted that actually the complainant-victim was living with her husband at Jalandhar, Punjab and the victim disappeared without informing to her husband to some other place on 19.11.2022. In this regard, an application for missing was given by the husband (Rahul) to the Police Station-Division No.3, Commissionerate Jalandhar, in which it has been stated that his wife is missing since 19.11.2022, a copy of the said application is annexed as Annexure No.2 to the affidavit filed in support of the bail application. Learned counsel for the appellant further submits that the husband of opposite party No.2 has also moved an application under Section 156(3) CrPC before the court of Chief Judicial Magistrate, Civil Judge Junior Division/2nd, Ambedkar Nagar against the brother-in-law of the opposite party No.2 regarding allegation of rape and harassment to his wife and for lodging of the case, the said application is annexed as Annexure No.3. The counsel further submits that when the opposite party No.2 came to know about the alleged application which was filed against her brother-in-law, to falsely implicate the appellant as he is the friend of the husband of the complainant, she moved an application under Section 156(3) Cr.P.C. against the appellant before the Special Judge (S.C./S.T.), Ambedkar Nagar in which a reference of same incident dated 30.11.2022 has been given that the appellant took the opposite party No.2 to some Tantrik for some treatment and thereafter on the same day committed rape upon the opposite party No.2 in his room. It is also stated that the appellant is the friend of husband of the opposite party No.2. Learned counsel for the appellant further submitted that only to create pressure, the present appellant has been falsely implicated in this case whereas no proper explanation regarding the delay has been given in the application.

Learned counsel for the appellant further submits that in the statement recorded under Sections 161 and 164 Cr.P.C., the opposite party No.2-the victim has repeated almost the same version of the averments made in the application under Section 156(3) Cr.P.C. and even the sister of opposite party No.2 has also repeated the same version. It is also stated that the doctor, who conducted the medical, had opined that there is neither external or internal injury found on the private parts of the victim, nor any dead or alive spermatozoa was seen on her vaginal smear andno definite opinion can be given about sexual assault. As per the medical report the age of the victim is 30 years. As such, she is major and know the consequences very well. The appellant has been falsely implicated in this case to create pressure so that the husband of the opposite party No.2 may withdraw the alleged case filed against the brother-in-law of the opposite party No.2, as such, allegation of rape levelled against the appellant are false and, therefore, the appellant is entitled for bail.

Several other submissions in order to demonstrate the falsity of the allegations made against the appellant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the appellant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that the accused is not having any criminal history and he is in jail since 23.02.2023 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

Learned A.G.A. opposed the prayer for bail and submitted that as per the averment made in the application under Section 156(3) Cr.P.C. as well as the statement of the victim recorded under Sections 161 and 164 Cr.P.C., case is made out against the appellant however, he is unable to dispute that the doctor has not given any definite opinion regarding external or internal injury.

After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also in the absence of any convincing material to indicate the possibility of tampering with the evidence and considering the statement of the victim recorded under Sections 161 and 164 Cr.P.C.; medical report wherein no external or internal injury was found on the person of the victim and the doctor has not given any opinion regarding commission of sexual violence; age of the prosecutrix was found to be 30 years, as such, she is major and know the consequences very well and further considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the case of Dataram Singh vs. State of UP and another, reported in (2018) 3 SCC 22, this Court is of the view that the learned court below has failed to appreciate the material available on record. The order passed by the court below is liable to be set aside.

Accordingly, the appeal is allowed. Consequently, the impugned judgment and order dated17.03.2023 passed by the learned Special Judge, S.C./S.T. Act, Ambedkar Nagar in Bail Application No.353/2023, arising out of Case Crime No.05 of 2023, under Sections 376, 506 I.P.C. and Section 3(2)/(V)of S.C./S.T. Act, Police Station Bevana, District Ambedkar Nagar is hereby set aside and reversed.

Let the appellant,Shiv Pujan Maurya be released on bail in the Case Crime No.05 of 2023, under Sections 376, 506 I.P.C. and Section 3(2)/(V)of S.C./S.T. Act, Police Station Bevana, District Ambedkar Nagar with the following conditions:-

(i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned.

(ii) The appellant shall appear and strictly comply following terms of bond executed under section 437 sub section 3 of Chapter- 33 of Cr.P.C.:-

(a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter.

(b) The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) The appellant 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.

(iii) The appellant shall cooperate with investigation /trial.

(iv) The appellant 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.

(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(vi) In case, the appellant misuses the liberty of bail during trial, in order to secure his presence, proclamation under section 82 Cr.P.C. is issued and the appellant 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.

(vii) The appellant shall remain present, 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 appellant 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.

(viii) The trial court is also directed to expedite the trial of the aforesaid case by following the provisions of Section 309 Cr.P.C., strictly without granting any unnecessary adjournments to the parties, in case there is no other legal impediment.

Order Date :- 17.8.2023/Raj