Allahabad High Court
Tara vs State Of U.P. And Another on 27 January, 2023
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 81
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7775 of 2021
Applicant :- Tara
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Amrit Shanker Dubey,Adesh Kumar,Avnish Kumar Srivastava,Mohit Kumar Singh,Pankaj Kumar Tripathi,Prem Chandra Dwivedi,Priyanka Sharma,Shobit Chaudhary,Sujata Choudhary,Sunil Kumar
Counsel for Opposite Party :- G.A.,Awadh Bihari Pandey,Lavesh Sharma
Hon'ble Saurabh Shyam Shamshery,J.
Heard learned counsel for the applicant, learned A.G.A. and perused the record.
The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No.120 of 2020, under Sections 452, 376 I.P.C. and 5K/6 of POCSO Act, Police Station-Kagaraul, District-Agra after rejection of her Bail Application vide order dated 19.12.2020 passed by learned Special Judge (POCSO Act)/Additional District and Sessions Judge/Court No.29, Agra.
Applicant before this Court wants to take advantage of statement of victim that she has not supported the case of prosecution and has stated during cross-examination that no offence of rape was committed. He further submits that if entire statement is read out, prosecution version has not been supported. It is also submitted that applicant has no criminal history and she is languishing in jail since 25.11.2020 and in case, she is released on bail, she will not misuse the liberty of bail and will cooperate in trial.
Above submissions are opposed by learned A.G.A.
LAW ON BAIL
A. "The basic rule may perhaps be tersely put as bail, not jail" (State Of Rajasthan, Jaipur vs Balchand @ Baliay : (1977 AIR 2447, 1978 SCR (1) 535). Power to grant bail under Section 439 of CrPC, is of wide amplitude. The court is bestowed with considerable but not unfettered discretion, which calls for exercise in a judicious manner and not as a matter of course and not in whimsical manner. (see Ram Govind Upadhyay Vs Sudarshan Singh :(2002) 3 SCC 598 and Neeru Yadav Vs State of U.P.:(2016)15 SCC 422).
B. "The considerations in granting bail are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out." [Gurcharan Singh v. State (Delhi Administration), (1978) 1 SCC 118)]. "There is no strait jacket formula which can ever be prescribed as to what the relevant factors could be. However, certain important factors that are always considered, inter-alia, relate to prima facie involvement of the accused, nature and gravity of the charge, severity of the punishment, and the character, position and standing of the accused" [State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21]. In Manno Lal Jaiswal vs. The State of U.P. and others, 2022 SCC OnLine SC 89 Supreme Court has observed that, "when the Accused were charged for the offences punishable under Section 149 of the Indian Penal Code also and when their presence has been established and it is stated that they were part of the unlawful assembly, the individual role and/or overt act by the individual Accused is not significant and/or relevant."
C. "....It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge." (Prahlad Singh Bhati vs. NCT of Delhi and Ors:( 2001) 4 SCC 280).
D. "....It is a fundamental premise of open justice, to which our judicial system is committed, that factors which have weighed in the mind of the Judge in the rejection or the grant of bail are recorded in the order passed. Open justice is premised on the notion that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The duty of Judges to give reasoned decisions lies at the heart of this commitment...." (Mahipal v. Rajesh Kumar, (2020) 2 SCC 118) and also (Ms. Y versus State of Rajasthan and Anr :2022 SCC OnLineSC 458).
E. "....There cannot be elaborate details recorded to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal while passing an order on an application for grant of bail. However, the Court deciding a bail application cannot completely divorce its decision from material aspects of the case such as the allegations made against the accused; severity of the punishment if the allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of the witnesses being influenced by the accused; tampering of the evidence; the frivolity in the case of the prosecution; criminal antecedents of the accused; and a prima facie satisfaction of the Court in support of the charge against the accused." (Manoj Kumar Khokhar (2022)3 SCC501).
In order to deal with argument, I have carefully perused the statement of victim annexed along with this application.
On a specific querry by trial court, victim has stated that an offence of rape was committed by the applicant and she has repeated the same in later part of her statement and on certain suggestions, some contradiction has been made which cannot be considered at this stage to the extent that it may be fatal to entire prosecution case as this will be subject matter of consideration by trial court while passing the judgment.
Since the victim has prima facie supported the prosecution case during her examination-in-chief as well as in cross examination also, therefore, no case of bail is made out.
At this stage, learned counsel for the applicant submits that trial be concluded expeditiously as the applicant is languishing in jail since 25.11.2020.
Considering the above submissions and that speedy trial is the right of accused and the complainant also, this application is disposed of with direction to the learned trial court to conclude the trial expeditiously, preferably within a period of eight months from today, if there is no legal impediment.
Order Date :- 27.1.2023
SB
