Deepak vs State Of U.P.
2023 Latest Caselaw 13773 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 76
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 50456 of 2022
 

 
Applicant :- Deepak
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Nagendra Kumar Singh,Awadhesh Kumar Pandey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1.Heard Sri Nagendra Kumar Singh, Sri Awadhesh Kumar Pandey, learned counsel for applicant, Rishi Chaddha, learned A.G.A. and perused the records.

2. The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No.114 of 2022, under Sections 366, 376D, 328, 323 and 506 I.P.C., Police Station-Faizganj Behta, District-Buduan after rejection of his Bail Application vide order dated 3.9.2022 passed by Incharge Sessions Judge, Buduan.

3. In the present case, the alleged occurrence took place on 16.6.2021 when the minor daughter of informant was missing and during search it was revealed that two named accused including the applicant was seen lastly taking to her. Later on, on 21.6.2021, police informed that girl has been recovered. However, no F.I.R. was lodged and later on, on basis of an application filed under Section 156 (3) Cr.P.C. on 30.11.2021 and under direction of Magistrate, F.I.R. was lodged on 1.5.2022 for committing an offence of gang rape of a minor girl as well as for other offences referred above.

4. Learned counsel for the applicant submits that it is a case of false implication. Father of the victim has not lodged F.I.R. promptly though she was missing and applicant and co-accused were suspected also. Even though victim was recovered, however, at a belated stage, application under Section 156 (3) Cr.P.C. was filed and he referred part of the application that initially informant was not desirous to lodge F.I.R., however, after hearing his inner voice, he filed the application.

5. Learned counsel for the applicant has not disputed that version of the victim recorded under Sections 161 and 164 Cr.P.C. is against him as well as co-accused that they have committed offence of rape. However, he submitted that similarly situated co-accused Sant Kumar has been granted bail by a co-ordinate Bench of this Court in Criminal Misc. Bail Application No.49729 of 2022, vide order dated 7.4.2023, though he fairly submitted that reasons assigned therein may not be approved by Supreme Court in terms of the judgment passed in Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022)3 SCC 501; and Brijmani Devi Vs. Pappu Kumar (2022) 4 SCC 497.

6. Learned counsel for the applicant further submitted that initially F.I.R. was lodged indicating that victim is a minor girl. However, according to her educational documents, her age was found just above 18 years, therefore offence under POCSO Act was dropped. Applicant is languishing in jail since 9.7.2022, there is no likelihood of early disposal of trial and the applicant undertakes that if enlarged on bail, he will never misuse his liberty and will co-operate in the trial.

7.Learned A.G.A. submitted that victim is a major girl. However, she has stated consistently against the applicant in her statements recorded under Sections 161 and 164 Cr.P.C. It is not disputed that co-accused has been granted bail by this Court as well as that father of the victim has not filed an application under Section 156 (3) Cr.P.C. promptly.

8.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 not 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).

9.In the present case, initially F.I.R. was lodged indicating that victim is a minor girl. However, later on, on the basis of her educational documents, it was found that victim was a major girl, therefore, offence under POCSO Act was dropped.

10. There is a substance in the argument of learned counsel for the applicant that there was a delay in approaching the Magistrate for filing an application under Section 156 (3) Cr.P.C. as it appears that the informant has not taken any steps to lodge the F.I.R. and he was sitting idle and only after hearing his inner voice, he filed the application under Section 156 (3) Cr.P.C.

11. In these circumstances, though the statement of the victim remained consistent against the applicant, still considering the above factors and also considering that co-ordinate Bench of this Court has granted bail to co-accused, applicant has also made out a case for bail.

12. Let the applicant-Deepak, 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 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.

(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 the applicant, if there is no other legal impediment.

(v) Applicant has to appear on each and every date before learned Trial Court and any application for exemption of his appearance on vague ground could be a ground for cancellation of bail by learned Trial Court without even issuing notice.

13. 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.

14. The bail application is allowed.

15. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.

Order Date :- 2.5.2023

SB