Raju vs State Of U.P.
2023 Latest Caselaw 18645 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:147386
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32161 of 2023
 

 
Applicant :- Raju
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Jai Prakash Prasad,Anil Kumar,Savan Kumar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Jai Prakash Prasad, the learned counsel for applicant and the learned A.G.A. for State.

2. This application for bail has been filed by applicant Raju seeking his enlargement on bail in Case Crime No. 121 of 2022, under Section 376-D, 342, 506 I.P.C., Police Station Utraon, District Prayagraj during the pendency of trial.

3. Record shows that in respect of incidents which are alleged to have occurred from 24.05.2022 to 03.06.2022, a delayed F.I.R. dated 16.06.2022 was lodged by first informant Smt. Nargis Begum (mother of the prosecutrix) and was registered as Case Crime No. 121 of 2022, under Section 376-D, 342, 506 I.P.C., Police Station Utraon, District Prayagraj. In the aforesaid F.I.R. seven persons namely (1) Raju (2) Saurabh (3) Rambabu (4) Sonu (5) Oma Shanker (6) Dhirendra (7) Ajay and three unknown persons have already nominated as named accused.

4. The gravamen of the allegations made in the F.I.R. is to the effect that the three of the named accused deliberately and forcibly dislodged the modesty of the prosecutrix by committing rape upon her.

5. At the very outset, the learned counsel for applicant contends that co-accused Sonu has already enlarged on bail vide order dated 15.03.2023 passed in Criminal Misc. Bail Application No. 43928 of 2022 (Sonu Vs. State of U.P.). For ready reference the same is reproduced herein under:

"Heard Sri Hanuman Prasad Mishra, learned counsel for the applicant, learned counsel for the State and perused the material on record.

This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Sonu, seeking enlargement on bail during trial in connection with Case Crime No. 121 of 2022, under sections 376-, 342, 506 IPC, P.S. Urtraon, District Prayagraj.

The submission advanced by learned counsel for the applicant is that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. The statement of the victim recorded under sections 161 as well as 164 Cr.P.C. is contradictory to each other. According to report of Radiologist the age of the victim is 18-20 years. The first information report of the incident has been lodged after 23 days delay. From the perusal of the first information report, it is clear that victim was having love affairs with the applicant and she was making pressure upon the applicant to marry with her, but due to relation the other co-accused opposing the marriage. The victim is consenting party with the applicant. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been mentioned. It has also been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It is further contended by learned counsel for the applicant that the applicant is languishing in jail since 26.06.2022 having no criminal history.

Per contra, learned AGA for the State has opposed the prayer for bail.

After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.

Let the applicant- Sonu, be released on bail in the aforesaid case crime number on furnishing a personal bond and two heavy 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

(ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.

(iii) The applicant shall file an undertaking to the effect that he 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.

(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure his 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, in accordance with law, under section 174-A I.P.C.

(V) 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 him in accordance with law and the trial court may proceed against him under Section 229-A IPC.

(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.

The bail application is allowed"

6. On the above premise, he contends that the case of the present applicant is similar and identical to that of co-accused Sonu who has already been enlarged on bail. There is no such distinguishing feature on the basis of which the case of the present applicant could be so distinguished from bailed out co-accused so as to deny him bail. He, therefore contends that in view of above and for the facts and reasons recorded in the bail order of aforementioned bailed out co-accused, applicant is also liable to be enlarged on bail on the ground of parity. 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 10.06.2022. As such he has undergone more than one year and one month 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. However, Upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the course of trial. He therefore 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 the applicant is a named as well as charge sheeted accused therefore he does not deserve any indulgence by this Court. Learned A.G.A. has then invited the attention of Court to the recital contained at page 49 of the paper book i.e. the statement of the prosecutrix before the doctor who medically examined her. On the basis of above, the learned A.G.A. contends that criminality committed by named/charge-sheeted accused is joint and common as such the same is incapable of being separated or segregated. As such no sympathy be shown by this Court in favour of the applicant. However, he could not dislodge the factual/legal submissions urged by 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, complicity of accused and accusation made coupled with the fact that co-accused has already enlarged on bail, there being no such distinguishing feature in the case of the present applicant to distinguish his case from bailed out co-accused, in such a manner so as to deny him bail, the clean antecedents of the applicant, the period of incarceration undergone, the police report in terms of Section 173(2) Cr.P.C. i.e. charge sheet has already been submitted, as such the entire evidence sought to be relied upon by the prosecution against applicant, however, the learned A.G.A. with reference to the record could not point out any such circumstance necessitating the custodial arrest of applicant, the judgment of the Supreme Court in Sumit Subhaschandra Gangwal & Anr. Vs. The State of Maharastra & Anr. 2023 Live Law (SC) 373 (paragraph 5) but without making any comment 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- Raju 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.

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 :- 24.7.2023

Imtiyaz