Allahabad High Court
Ravikant vs State Of U.P. on 22 March, 2023
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 76
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25127 of 2022
Applicant :- Ravikant
Opposite Party :- State of U.P.
Counsel for Applicant :- Avinash Pandey
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Avinash Pandey, learned counsel for applicant and learned AGA for State.
2. Applicant-Ravikant, has approached this Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. after rejection of his Bail Application vide order dated 30.05.2022, passed by Sessions Judge, Saharanpur, in Case Crime No.41 of 2022, under Sections 376D, 506 IPC and 67A I.T. Act, Police Station Fatehpur, District Saharanpur.
3. In the present case victim is 45 years old woman who lodged FIR against applicant and two named co-accused that they put victim under threat by putting knife on her and took her to a sugarcane field where they raped her one by one and also recorded video of act.
4. Learned counsel for applicant submits that allegation of rape was on all three accused and one of the co-accused, Banarasi, has been granted bail by this Court. Additionally it was alleged that applicant has also recorded a video of act of rape, however, no such video was recovered. He referred to an order passed by this Court on 14.02.2023 with regard to FSL report, however, the same has also not been brought on record till date. Learned counsel further submits that there was a delay of about 10 days in lodging of FIR which remained unexplained. Medical report does not support prosecution case and it is a case of false implication. It is also submitted that applicant has no criminal history and he is languishing in jail since 31.01.2022 and in case, he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
5. Learned AGA appearing for State opposed the prayer for bail. He submits that victim in her statement recorded under Section 164 Cr.P.C. has completely corroborated the prosecution case. Reason for delay has been explained in FIR that accused persons have extended threat that in case of any complaint, her children may be killed.
6. LAW ON BAIL - A SUMMARY
(A) The basic rule may perhaps be tersely put as bail, not jail.
(B) Power to grant bail under Section 439 Cr.P.C., is of wide amplitude but not an unfettered discretion, which calls for exercise in a judicious manner and not as a matter of course or in whimsical manner.
(C) While passing an order on an application for grant of bail, there is no need to record elaborate details to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal. However, a Court cannot completely divorce its decision from material aspects of the case such as allegations made against accused; nature and gravity of accusation; having common object or intention; severity of punishment if allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of witnesses being influenced by accused; tampering of evidence; character, behaviour, means, position and standing of accused; likelihood of offence being repeated; the frivolity in the case of prosecution; criminal antecedents of accused and a prima facie satisfaction of Court in support of charge against accused. The Court may also take note of participation or part of an unlawful assembly as well as that circumstantial evidence not being a ground to grant bail, if the evidence/ material collected establishes prima facie a complete chain of events. Parity may not be an only ground but remains a relevant factor for consideration of application for bail.
(D) Over crowding of jail and gross delay in disposal of cases when undertrials are forced to remain in jail (not due to their fault) may give rise to possible situations that may justify invocation of Article 21 of Constitution, may also be considered along with other factors.
(See, State Of Rajasthan, Jaipur vs. Balchand @ Baliay (AIR 1977 SC 2447 : 1978 SCR (1) 535; Gurcharan Singh vs. State (Delhi Administration), (1978) 1 SCC 118); State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21; Prasanta Kumar Sarkar vs. Ashis Chatterjee and Anr (2010)14 SCC 496; Mahipal vs. Rajesh Kumar, (2020) 2 SCC 118; Ishwarji Mali vs. State of Gujarat and another, 2022 SCC OnLine SC 55; Manno Lal Jaiswal vs. The State of U.P. and others, 2022 SCC OnLine SC 89; Ashim vs. National Investigation Agency (2022) 1 SCC 695; Ms. Y vs. State of Rajasthan and Anr :2022 SCC OnLine SC 458; Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022)3 SCC 501; and, Deepak Yadav vs. State of U.P. and Anr. (2022)8 SCC 559)
7. Learned counsel for applicant has referred bail order dated 04.01.2023 passed in the case of co-accused and reasons given therein are referred hereinafter:
?Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, larger mandate of the Article 21 of the Constitution of India, considering the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018) 3 SCC 22 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.?
8. Above referred reasons may not be approved in terms of judgment passed by Supreme Court in Manoj Kumar Khokhar (supra) and Brijmani Devi vs. Pappu Kumar (2022) 4 SCC 497, however, considering that victim is a woman of 45 years old; there is delay of about 10 days in lodging FIR and explanation given in this regard appears to be not sufficient; alleged video of act has not been recovered; co-accused has been granted bail and applicant is in jail since 31.01.2022, a case of bail is made out.
9. Let the applicant-Ravikant be released on bail in the aforesaid case crime number on 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment or exemption from appearance on the date fixed in trial. 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 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.
(iv) The Trial Court may make all possible efforts/endeavour and try to conclude the trial expeditiously, preferably within a period of six months after release of applicant, if there is no other legal impediment.
10. 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.
11. Trial Court is also directed to record statement of victim expeditiously, preferably within a period of three months from today, if there is no other legal impediment.
12. The bail application is allowed.
13. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.
Order Date :- 22.3.2023
AK
