Dinesh vs State Of U.P. And Another
2023 Latest Caselaw 14973 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:103002
 
Court No. - 76
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1329 of 2023
 
Applicant :- Dinesh
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Surya Bhan Yadav
 
Counsel for Opposite Party :- G.A.,Ajay Kumar Vashistha
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Sri Ankit Srivastava, Advocate holding brief of Sri Surya Bhan Yadav, learned counsel for applicant, Sri Chandan Agarwal, learned AGA for State and Sri Ajay Kumar Vashistha, Advocate for Informant.

2. Applicant-Dinesh has approached this Court by way of filing present bail application seeking enlargement on bail in Case Crime No. 400 of 2022, under Sections 147, 363, 366, 328, 368, 376(D), 341 IPC, Police Station Ujhani, District Budaun, after rejection of his bail application vide order dated 22.11.2022 passed by Sessions Judge, Budaun.

3. Father of victim, aged about 19 years, lodged FIR on 22.06.2022 alleging that on 14.06.2022 at about 12.00 PM when victim was alone in house applicant and co-accused, Raja, who are politically powerful persons and used to change their place of residence, kidnapped his daughter and when he confronted with them, they not only threatened but also stated that take one lack rupees and forget about girl.

4. It appears that victim was traced on 20.09.2022, i.e., after about three months and ten days. Thereafter her statements were recorded under Sections 161 and 164 Cr.P.C. which appear to be on same line that on the date of occurrence applicant and co-accused, Raja have kidnapped her and taken to an isolated place and thereafter to Delhi where she was raped by both accused persons and later on she was sold to some other person, where she stayed for about one month. However, victim has not able to identify the place or person where she was kept for about one month.

5. Learned counsel for applicant submits that delay in lodging FIR is about seven days, which has been explained very vaguely. It was in the knowledge of Informant that present applicant and other named accused persons were involved in offence as he has confronted them on same day, still FIR was lodged after seven days.

6. Learned counsel for applicant has disputed the manner of recovery and read out the relevant part of case diary. He further submits that statements of victim recorded under Sections 161 and 164 Cr.P.C. appear to be consistent with certain overlapping or modification, however, it is improbable that victim may not be able to raise alarm when she was taken by applicant and co-accused, Raja on a Motorcycle as well as when she was kept at Delhi. It is also improbable that victim was not able to identify the place or person where she was allegedly kept for about one month.

7. Learned counsel for applicant has denied the allegation that applicant and co-accused are politically influential persons. He also submit that applicant is a resident of different district and has no relationship or connection with victim at any point of time. He further submits that co-accused, Raja has already been enlarged on bail by a Coordinate Bench of this Court vide order dated 21.02.2023. Learned counsel also submits that applicant has no criminal history and is languishing in jail since 15.10.2022 and in case, he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.

8. Learned AGA appearing for State opposed the prayer for bail and refers the statement of victim recorded under Sections 161 and 164 Cr.P.C. to state that there are specific allegation of rape against applicant and co-accused, Raja. He also states that delay of seven days in lodging FIR may not be considered to be an adverse factor considering that there was a threat perception and fear of social disgrace. He further submits that though co-accused, Raja has been granted bail by this Court, however, the reasons given in bail order are not in terms of judgments passed by 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, therefore, the same cannot be relied.

9. Learned counsel appearing for Informant has vehemently argued that applicant and their family members are powerful persons and they have extended threat of dire consequences and even they have offered rupees one lakh to Informant, as such delay of seven days in lodging FIR cannot be considered to be fatal. He also refers the statements of victim recorded under Sections 161 and 164 Cr.P.C. that there are specific allegation of rape against applicant and co-accused, Raja. However, he is not able to dispute that victim has not identified the place and person where she was kept for about one month.

10. 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)

11. In the present case, victim has just entered the stage of majority. It appears to be a case where in broad day light victim has been kidnapped and Informant has knowledge about the persons as he has confronted them on the same day. Though delay in lodging FIR was explained that there is a threat perception but it is not sufficient. Still it does not affect adversely to the case of prosecution since victim has been recovered after a period of three months and ten days and she has given statements under Sections 161 and 164 Cr.P.C. alleging narration of entire facts and manner of kidnapping and how she was kept at different places and was sold to third person also.

12. From bare perusal of statements it is evident that there is a consistent allegation of kidnapping and rape against applicant and co-accused, Raja. Though co-accused, Raja has been granted bail by this Court but there is substance in argument of learned AGA that reasons given in bail order are not in terms of judgments passed by Supreme Court in Manoj Kumar Khokhar (supra) and Brijmani Devi (supra).

13. Still a factor which goes in favour of applicant at this stage is that, victim had opportunity to raise alarm when she was kidnapped from her house on Motorcycle as well as when she was kept at different places but she did not. I find substance in the argument of learned counsel for applicant that it may be a case of false implication since victim remained with third person for about one month but she is not able to identify the place or person. In these circumstances and also considering that applicant is in jail since 15.10.2022, a case of bail is made out.

14. 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.

15. Let the applicant-Dinesh 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.

16. At this stage, learned counsel for Informant submits that since there is a threat perception and statement of victim has not been recorded in trial till date, therefore, some stringent condition may also be imposed on applicant.

17. Taking note of argument of learned counsel for Informant, the applicant is directed not to enter in the area of District Budaun for a period of three months from today, except for the purpose of present case with prior information to Trial Court and meanwhile, Trial Court is directed to record statement of victim.

18. 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.

19. The bail application is allowed.

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

Order Date :- 12.5.2023

AK