Allahabad High Court
Harish Chandra Kushwaha vs State Of U.P. on 6 December, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:234624
Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49526 of 2023
Applicant :- Harish Chandra Kushwaha
Opposite Party :- State of U.P.
Counsel for Applicant :- Vijay Singh Sengar
Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Vijay Singh Sengar, 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-Harish Chandra Kushwaha, seeking his enlargement on bail in Case Crime No. 85 of 2023, under Sections 376, 506 IPC, Police Station-Ait, District-Jalaun during the pendency of trial.
4. Record shows that in respect of an incident, which is alleged to have occurred on 07.06.2023, a delayed FIR dated 08.06.2023 was lodged by first informant-Smt. Chhaya Kushwaha (i.e. the prosecutrix) and was registered as Case Crime No. 85 of 2023, under Section 376 IPC, Police Station-Ait, District-Jalaun. In the aforesaid FIR, applicant-Harish Chandra Kushwaha has been nominated as solitary named 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 13.06.2023 yet applicant is liable to be enlarged on bail. The prosecutrix and her father have deposed before court below as PW-1 and PW-2 but they have not supported the FIR. On the above premise, he, therefore, contends that as the prosecutrix in her deposition before court below has herself not supported the FIR, no useful purpose shall be served in prolonging the custodial arrest of applicant during the pendency of trial.
6. Learned A.G.A. contends that applicant has criminal history of one case under Section 498-A. However, the same has not been explained.
7. When confronted with above, the learned counsel for applicant contends that applicant has not been implicated in any grievous or heinous offence. Referring to the three Judges Bench Judgment of Supreme Court in Brijmani Devi Vs. Pappu Kumar and Another, (2022) 4 SCC 497, it is urged by the learned counsel for applicant that an accused cannot be denied bail simply on the basis of criminal history. Applicant is in jail since 10.06.2023. As such, he has undergone more than 5 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. Apart from above, once the prosecutrix herself has been examined by court below, therefore, now it cannot be said that in case, applicant is enlarged on bail, he shall terrorize the witnesses or shall hamper the course 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.
8. 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, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.
9. 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, complicity of accused and coupled with the fact that the prosecutrix in her deposition before court below has herself not supported the FIR, therefore, no useful purpose shall be served in prolonging the custodial arrest of applicant during the pendency of trial, moreover, once the statement of the prosecutrix itself has been recorded, therefore, now it cannot be said that in case, applicant is enlarged on bail, he shall terrorize the witnesses or shall hamper the course of trial, 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 against applicant stands crystallized, yet in spite of above, 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, applicant has not been implicated in any grievous or heinous offence, therefore, irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail, but without making any comments on the merits of the case, applicant has made out a case for bail.
10. Accordingly, the bail application is allowed.
11. Let the applicant-Harish Chandra Kushwaha, be released on bail in 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.
12. 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 :- 6.12.2023
Vinay
