Allahabad High Court
Abhishek Mishra @ Monu vs State Of U.P. on 7 February, 2023
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
RESERVED ON 3.2.2023
DELIVERED ON 7.2.2023
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43474 of 2022
Applicant :- Abhishek Mishra @ Monu
Opposite Party :- State of U.P.
Counsel for Applicant :- Brij Lal Shukla,Amar Nath Tiwari
Counsel for Opposite Party :- G.A.,Upendra Kumar Mishra
Hon'ble Siddharth,J.
Heard Shri Brij Lal Shukla, learned counsel for the applicant; Shri Upendra Kumar Mishra, learned counsel for the informant and learned A.G.A.
The instant bail application has been filed on behalf of the applicant, Abhishek Mishra @ Monu, with a prayer to release him on bail in Case Crime No. 44 of 2022, under Sections 376,504,506 IPC Police Station Rampur Karkhana, District- Deoria, during pendency of trial.
There is allegation in the First Information Report regarding commission of rape,threatening and penetrative sexual assault.
Learned counsel for the applicant has submitted that it is a case of false implication of the applicant. She is major and is aged about 20 years as per ossification test report. He has submitted that victim herself made complaint before the Superintendent of Police , Deoria and after investigation Circle Officer, Deoria submitted a report dated 21.10.2021 to the effect that about ten years ago father of the victim had taken Rs. 90,000/- as loan by mortgaging his plot before the applicant. Her father has not returned the money. Few days ago the father of the victim and her brother were making permanent construction over the disputed land for storing Bhusha (Chaff).Applicant asked them to return the money and then he will permit construction.Thereafter informant's father and her brother were pressureing applicant to execute the sale deed of the disputed land in their favour.
Learned counsel for the applicant has submitted that from the medical report of the victim offence of rape does not stands established. The First Information Report is delayed by about five months. There is no corroborative evidence of the statement of the victim. The applicant is in jail since 5.5.2022 and has no criminal history.
Learned counsel for informant has vehemently opposed the bail prayer of the applicant along with learned A.G.A..He has submitted that since First Information Report was lodged after 5-6 months of the incident,therefore incident cannot be corroborated by the medical evidence. He has submitted that as per birth certificate of the victim brought on record as annexure-3 of the affidavit and her Adhar Card, she is minor.
This court finds that there is also 10th examination result of the victim brought on record wherein her date of birth is 1.1.2002.
After considering the rival contentions, it appears that victim is major.She has implicated the applicant in this case belatedly by way of proceedings under section 156(3) Cr.P.C..There appears to be dispute of loan between the parties.
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 :- 7.2.2023
Atul kr. sri.
