Allahabad High Court
Monish vs State Of U.P. And 3 Others on 24 March, 2023
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 76
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 617 of 2023
Applicant :- Monish
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Pankaj Bharti
Counsel for Opposite Party :- G.A.,Rizwan Ullah Siddiqui
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Pankaj Bharti, learned counsel for applicant, Sri Markandey Singh, Brief Holder for State and Sri Rizwan Ullah Siddiqui, Advocate for Informant.
2. Applicant-Monish has approached this Court by way of filing present bail application seeking enlargement on bail in Case Crime No. 660 of 2022, under Sections 363, 376-D IPC and 3/4 POCSO Act, Police Station Kotwali Nagar, District Muzaffar Nagar, after rejection of his bail application vide order dated 09.11.2022 passed by Special Additional Sessions Judge (POCSO Act), Muzaffar Nagar.
3. Mother of victim (a minor girl) initially lodged FIR against unknown that her daughter has left her home without any information. She earlier also left her home but returned back after one month.
4. Learned counsel for applicant submits that victim was later on recovered. She in her statement recorded under Section 161 Cr.P.C. has narrated that applicant and co-accused, Javed, met her. She alongwith applicant reached to bus stand, however, since co-accused did not turn up with money and applicant also left her alone, she returned back. There was no allegation of kidnapping or rape. Learned counsel further submits that victim in her statement recorded under Section 164 Cr.P.C. has disclosed about occurrence of repeated rape by applicant as well as co-accused after they gave Maza (with sedative substance). The statement was made under pressure of her parents. Learned counsel further submits that co-accused, Javed, has been granted bail by a Coordinate Bench of this Court. Earlier Informant has lodged a FIR on similar facts with regard to her elder daughter, when applicant being a minor, was granted bail.
5. Learned AGA and learned counsel for Informant submit that applicant and co-accused have forcefully kidnapped a minor girl and thereafter forced her to drink Maza with sedative substance and repeatedly raped her. The bail order of co-accused is not a reasoned order.
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. In the present case, according to x-ray report radiological age of victim was opined to be 18-19 years. No educational document shown to Court. Victim has narrated her case in statement recorded under Section 164 Cr.P.C. that she was repeatedly raped by applicant and co-accused. She has not denied that she earlier also went alongwith applicant. Complainant has also made earlier complaint on similar facts with regard to her elder daughter, wherein he has been granted bail. Medical examination was conducted after five days and has not supported prosecution case. The co-accused has been granted bail though reasons given therein 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, still considering above factors, a case of bail is made out.
8. However, applicant is directed to remain present on each and every date as and when required by Trial Court during trial and in case any application for exemption on vague ground is filed, the same shall be a ground for Trial Court to cancel bail immediately. Applicant is also directed not to enter in Kidwai Nagar, Muzaffar Nagar till victim's statement is recorded in trial.
9. Let the applicant-Monish 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. The bail application is allowed.
12. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.
Order Date :- 24.3.2023
AK
