Allahabad High Court
Nand Lal vs State Of U.P. on 29 March, 2023
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 76
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 981 of 2023
Applicant :- Nand Lal
Opposite Party :- State of U.P.
Counsel for Applicant :- Mahadeo Singh Chandel
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
Applicant - Nand Lal has approached this Court for bail in Case Crime No. 210 of 2022 under Section 376 I.P.C., Police Station- Tindwari, District- Banda.
In the present case, victim, an adult girl of about 22 years, has lodged an F.I.R. against her mother, father and brother alleging very serious allegation that she was married to one Rahul on 04.06.2021, however, due to dispute at her matrimonial house, she came back to her parental house. She alleged that her elder brother has repeatedly raped her and she became pregnant. The victim informed about said act to her mother and father but they have, on one hand, not taken note on complaint and on other hand, assaulted her. Victim further alleged that her brother (accused) left her at matrimonial house and when on 26.08.2022 due to pain in her stomach, an ultrasound was conducted then it came into knowledge of her husband and her mother in law about pregnancy and then victim told everything to her in-laws and in these circumstances, she lodged the F.I.R.
Sri M.S. Chandel, learned counsel for applicant submits that applicant was not named in F.I.R. which was lodged after about four months of occurrence, however, statement of victim recorded under Section 161 Cr.P.C., she made allegations against applicant who is distantly related as her brother of committing rape as he was allowed by her mother to do so on payment. The said version was repeated by victim in her statement recorded under Section 164 Cr.P.C.; learned counsel further submits that allegations appear to be very serious, however, it is very improbable that mother would engage her daughter into prostitution and allowed her real brother and applicant (a distant brother) to rape her on payment; therefore, applicant who is in jail since 12.09.2022 may be released on bail. The co-accused (brother of victim) has already been granted bail.
While opposing prayer for bail, Sri Markandey Singh, Brief Holder for State submits that there are serious allegations against all accused persons; mother of victim has put her into prostitution; learned counsel further submits that bail application of mother of victim, a co-accused, has already been rejected by coordinate Bench of this Court (Bail Application No. 650 of 2023 dated 06.02.2023); statement of victim remains consistent in statements recorded under Sections 161 and 164 Cr.P.C.; the allegations cannot be rejected on the ground being improbable; therefore, applicant may not be released on bail.
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)
There is no doubt that victim has raised very serious allegations against all accused persons. She has specifically alleged in her statement recorded under Sections 161 and 164 Cr.P.C. that her mother has put her into prostitution, her real elder brother has repeatedly raped her, her father has not given any attention to complaints of victim. Name of applicant was though not mentioned in F.I.R. but it was specifically mentioned in statements recorded under Sections 161 and 164 Cr.P.C. of victim that he has raped her with consent of her mother on payment of money.
Though, normally rejection of bail of co-accused may not be a relevant factor, however, considering the nature of allegation against co-accused whose bail application has been rejected that she has put her daughter into prostitution as well as considering the allegations against applicant which are corroborated by statement of victim recorded under Sections 161 and 164 Cr.P.C. that applicant has raped her and for that he has paid money to her mother as well as that co-accused Dasrath who has been granted bail by coordinate Bench of this Court, however, reasons given therein are only 'overcrowding in jail' and other reasons may not be approved in terms of judgment of Supreme Court in Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022)3 SCC 501 and Brijmani Devi vs. Pappu Kumar, (2022) 4 SCC 497 and that till date statement of victim has not been recorded before learned trial Court.
Therefore, in my considered opinion, no case of bail is made out. Hence, prayer for bail is rejected.
However, this application is disposed of with direction that Trial Court shall take all endeavour to record statement of victim expeditiously, preferably within a period of three months from today, if there is no legal impediment. Thereafter, applicant will be at liberty to file bail application before Trial Court.
Order Date :- 29.3.2023
Nirmal Sinha
