Junaid vs State Of U.P. And 3 Others
2023 Latest Caselaw 13997 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 76
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10928 of 2023
 

 
Applicant :- Junaid
 
Opposite Party :- State Of U.P. And 3 Others
 
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 A.G.A. for State.

2. Applicant- Junaid, has approached this Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. in Case Crime No.213 of 2022 under Sections 376(3), 457 I.P.C. and 3/4(2) of POCSO Act, Police Station- Jhinjhana, District - Shamli after rejection of his Bail Application vide order dated 13.02.2023 passed by Additional District and Sessions Judge/Special Judge(POCSO Act), Shamli.

3. Learned counsel for applicant submits that victim has supported the case of prosecution in her statement recorded under Sections 161 and 164 Cr.P.C. and has made specific allegation against applicant of committing rape, however, during trial, in her testimony as P.W.-2, she stated that occurrence of rape took place, however, she has denied that applicant was culprit and she was declared hostile as well as P.W.-1 i.e. complainant/informant (father of victim) has also not supported the case of prosecution and was also declared hostile.

4. Learned counsel further submits that considering the nature of evidence before learned Trial Court, possibility of conviction appears to be very low, therefore, applicant who is in jail since 21.05.2022 may be granted bail.

5. The above referred submissions are opposed by learned A.G.A. for State that according to judgment passed by Supreme Court in case of in Mahila Vinod Kumari Vs. State of Madhya Pradesh, (2008) 8 SCC 34. Even in these circumstances, applicant could be convicted, however, it is not disputed that two material witnesses i.e. informant and victim have not supported the case of prosecution and declared hostile.

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. As referred above, though victim has supported the prosecution case in her statement recorded under Sections 161 and 164 Cr.P.C., however, as also referred above that informant as well as victim has not supported the case of prosecution during trial and they have been declared hostile.

8. In these circumstances, there is substance in argument of learned counsel for applicant that possibility of conviction appears to be very weak, therefore, applicant who is in jail since 21.05.2022 has made out case of bail.

9. Let the applicant- Junaid 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.

13. However, considering contrary stand of the victim, Trial Court is directed to initiate summary proceedings against victim for giving false evidence as provided under Section 344 Cr.P.C. at appropriate stage and in this regard it would be appropriate to refer the relevant paragraphs of judgments passed by Supreme Court in Hemudan Nanbha Gadhvi vs. State of Gujarat, (2019) 17 SCC 523 and Mahila Vinod Kumari Vs. State of Madhya Pradesh, (2008) 8 SCC 34.

Hemudan Nanbha Gadhvi :-

"10. A criminal trial is but a quest for truth. The nature of inquiry and evidence required will depend on the facts of each case. The presumption of innocence will have to be balanced with the rights of the victim, and above all the societal interest for preservation of the Rule of law. Neither the Accused nor the victim can be permitted to subvert a criminal trial by stating falsehood and resort to contrivances, so as to make it the theatre of the absurd. Dispensation of justice in a criminal trial is a serious matter and cannot be allowed to become a mockery by simply allowing prime prosecution witnesses to turn hostile as a ground for acquittal, as observed in Zahira Habibullah Sheikh v. State of Gujarat, (2006) 3 SCC 374 and Mahila Vinod Kumari v. State of Madhya Pradesh, (2008) 8 SCC 34. If the medical evidence had not confirmed sexual assault on the prosecutrix, the T.I.P. and identification therein were doubtful, corroborative evidence was not available, entirely different considerations may have arisen.

11. It would indeed be a travesty of justice in the peculiar facts of the present case if the Appellant were to be acquitted merely because the prosecutrix turned hostile and failed to identify the Appellant in the dock, in view of the other overwhelming evidence available. In Iqbal v. State of U.P., 2015 (6) SCC 623, it was observed as follows:

"15. Evidence of identification of the miscreants in the test identification parade is not a substantive evidence. Conviction cannot be based solely on the identity of the dacoits by the witnesses in the test identification parade. The prosecution has to adduce substantive evidence by establishing incriminating evidence connecting the Accused with the crime, like recovery of articles which are the subject matter of dacoity and the alleged weapons used in the commission of the offence."

Mahila Vinod Kumari :-

"8. In the present case, on the basis of the allegations made by the petitioner, two persons were arrested and had to face trial and suffered the ignominy of being involved in a serious offence like rape. Their acquittal, may, to a certain extent, have washed away the stigma, but that is not enough. The purpose of enacting Section 344 CrPC corresponding to Section 479-A of the Code of Criminal Procedure, 1898 (hereinafter referred to as "the old Code") appears to be to further arm the court with a weapon to deal with more flagrant cases and not to take away the weapon already in its possession. The object of the legislature underlying enactment of the provision is that the evil of perjury and fabrication of evidence has to be eradicated and can be better achieved now as it is open to courts to take recourse to Section 340(1) (corresponding to Section 476 of the Old Code) in cases in which they have failed to take action under Section 344 CrPC.

9. This section introduces an additional alternative procedure to punish perjury by the very court before which it is committed in place of old Section 479-A which did not have the desired effect to eradicate the evils of perjury. The salient features of this new provision are:

(1) Special powers have been conferred on two specified courts, namely, the Court of Session and Magistrate of the First Class, to take cognizance of an offence of perjury committed by a witness in a proceeding before it instead of filing a complaint before a Magistrate and try and punish the offender by following the procedure of summary trials. For summary trial, see Chapter 21.

(2) This power is to be exercised after having the matter considered by the court only at the time of delivery of the judgment or final order.

(3) The offender shall be given a reasonable opportunity of showing cause before he is punished.

(4) The maximum sentence that may be imposed is 3 months' imprisonment or a fine up to Rs 500 or both.

(5) The order of the court is appealable (vide Section 351).

(6) The procedure in this section is an alternative to one under Sections 340-343. The court has been given an option to proceed to punish summarily under this section or to resort to ordinary procedure by way of complaint under Section 340 so that, as for instance, where the court is of the opinion that perjury committed is likely to raise complicated questions or deserves more severe punishment than that permitted under this section or the case is otherwise of such a nature or for some reasons considered to be such that the case should be disposed of under the ordinary procedure which would be more appropriate, the court may choose to do so [vide sub-section (3)].

(7) Further proceedings of any trial initiated under this section shall be stayed and thus, any sentence imposed shall also not be executed until the disposal of an appeal or revision against the judgment or order in the main proceedings in which the witness gave perjured evidence or fabricated false evidence [vide sub-section (4)].

10. For exercising the powers under the section the court at the time of delivery of judgment or final order must at the first instance express an opinion to the effect that the witness before it has either intentionally given false evidence or fabricated such evidence. The second condition is that the court must come to the conclusion that in the interest of justice the witness concerned should be punished summarily by it for the offence which appears to have been committed by the witness. And the third condition is that before commencing the summary trial for punishment the witness must be given reasonable opportunity of showing cause why he should not be so punished. All these conditions are mandatory. (See Narayanswami v. State of Maharashtra [(1971) 2 SCC 182 : 1971 SCC (Cri) 507] .)

11. The object of the provision is to deal with the evil of perjury in a summary way.

12. The evil of perjury has assumed alarming propositions (sic proportions) in cases depending on oral evidence and in order to deal with the menace effectively it is desirable for the courts to use the provision more effectively and frequently than it is presently done."

14. It is also directed that compensation, if any, granted to victim shall be recovered.

15. A copy of this order be sent to Trial Court for compliance.

Order Date :- 3.5.2023

P. Pandey