Allahabad High Court
Bhagwan Das Kushwaha @ Chhotu @ ... vs State Of U.P. on 22 August, 2023
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:168943
Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35434 of 2023
Applicant :- Bhagwan Das Kushwaha @ Chhotu @ Akash
Opposite Party :- State of U.P.
Counsel for Applicant :- Mahesh Kumar
Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. M.K. Tripathi, the learned counsel for applicant and the learned A.G.A. for State.
2. Perused the record.
3. This application for bail has been filed by applicant-Bhagwan Das Kushwaha @ Chhotu @ Akash, seeking his enlargement on bail in Case Crime No. 69 of 2023, under Sections 342, 376, 323, 504, 506, 376D IPC, Police Station-Baruasagar, District-Jhansi during the pendency of trial.
4. Record shows that in respect of an incident, which is alleged to have occurred on 02.01.2023, a delayed application dated 22.03.2023 under Section 156(3) Cr.P.C. was filed by the prosecutrix before the concerned Magistrate. The said application was allowed. Resultantly, a delayed FIR dated 26.04.2023 came to be registered as Case Crime No. 69 of 2023, under Sections 342, 376, 376D, 323, 504, 506 IPC, Police Station-Baruasagar, District-Jhansi. In the aforesaid FIR, the prosecutrix Smt. Jayanti Kushwaha has been shown as first informant and applicant has been nominated as solitary named accused whereas 4 unknown persons have already been arraigned as accused.
5. Learned counsel for applicant contends that though applicant is a named as well as charge sheeted accused inasmuch as, the charge sheet has been submitted against applicant on 06.07.2023 yet applicant is liable to be enlarged on bail. The prosecutrix is major. She is a married lady. On account of bad relation with her husband, the prosecutrix developed intimacy with the applicant and started residing with applicant. On the above premise, it is thus urged that the prosecutrix is a willing and consenting party. The delay in lodging the FIR remains unexplained. Referring to the judgment of the Supreme Court in P. Rajagopal And Ors. Vs. The State of Tamil Nadu, AIR 2019 SC 2866 (paragraph 8), he submits that since the delay in lodging the FIR has not been explained, the prosecution of the applicant itself cannot be maintained
6. Even otherwise, applicant is a man of clean antecedents inasmuch as, he has no criminal history to his credit except the present one. Applicant is in jail since 04.06.2023. As such, he has undergone more than 2 and 1/2 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. Up to this stage, no such circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. On the above premise, he submits that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
7. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.
8. Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of accused coupled with the fact that the prosecutrix is major, prosecutrix is a married lady, prosecutrix did not have cordial relation with her husband, as such, she developed intimacy with the applicant, the said fact is established from the statement of the husband of the prosecutrix, copy of which is on record at page 41 of the paper book, the prosecutrix being a willing party, the unexplained delay in lodging the FIR, the clean antecedents of applicant, the period of incarceration undergone, the police report 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 stands crystallized, however, in spite of the fact that the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, the judgment of the Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), but without making any comments on the merits of the case, applicant has made out a case for bail.
9. Accordingly, the bail application is allowed.
10. Let the applicant-Bhagwan Das Kushwaha @ Chhotu @ Akash, be released on bail in the aforesaid case crime number 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/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) 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 THE HIM/HER IN ACCORDANCE WITH LAW.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
11. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 22.8.2023/Vinay
