Allahabad High Court
Bhurey Alias Dharmendra vs State Of U.P. on 13 February, 2023
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 73
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3906 of 2023
Applicant :- Bhurey Alias Dharmendra
Opposite Party :- State of U.P.
Counsel for Applicant :- Akshaya Kumar
Counsel for Opposite Party :- G.A.
Hon'ble Siddharth,J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
There is allegation against the applicant of abduction of minor girl, commission of offence of gang rape and threatening.
Learned Counsel for the applicant submits that the age of the victim as per report of CMO is 19 years. She is not minor but major. Therefore, implication under Section 363 I.P.C is not warranted. Before the Doctor the victim has stated that she eloped with the co-accused. In her statements recorded under Section 161 and 164 Cr.P.C. she has implicated the applicant and the co-accused. Learned counsel for the applicant further submits that in the statement under Section 161 Cr.P.C. the victim has stated that while she was going for calling her father from brother's house, she was abducted by the applicant and co-accused and subjected to the alleged offence. Thereafter she was left at her aunt house and aunt left her at her parental home. In her statement under section 164 Cr.P.C., she has stated that on the fateful day on 28.11.2022, in the night at 12.00 p.m. she was going to her uncle's house to call her father in the way applicant and co-accused met and they abducted and committed offence of rape in the sugar cane field and thereafter they left her in the house of her aunt. These are inconsistent statements of the victim. She had affair with the co-accused, Sunil. Applicant has been falsely implicated in this case since he is brother-in-law of the co-accused. Medical report does not supports prosecution case. Applicant is in jail since 12.12.2022.
Learned AGA has opposed the prayer for bail but could not dispute the above submissions.
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 and 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 and 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, Bhurey Alias Dharmendra, involved in Case Crime No.265 of 2022, under Sections 363, 376-D, 506 I.P.C, Police Station Dhanari, District- Sambhal 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.
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) The applicant 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.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.
(iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail 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.
(v) 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 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 him in accordance with law.
In case of breach of any of the above conditions, the complainant is free to move an application for cancellation of bail before this court.
Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Order Date :- 13.2.2023
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