Ajeet vs State Of U.P. And 3 Others
2023 Latest Caselaw 15128 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:104293
 
Court No. - 76
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9055 of 2023
 

 
Applicant :- Ajeet
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Kamal Dev Rai
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

Applicant- Ajeet has approached this Court for bail in Case Crime No. 224 of 2022 under Sections 363, 366, 376-D I.P.C., Section 3/4 of POCSO Act, Police Station- Ajeetmal, District- Auraiya.

In the present case, father of victim, aged about 14 years, has lodged an F.I.R. on 07.06.2022 against two named accused (Gopal and Vishal) that on 05.06.2022, named accused have enticed his daughter and kidnapped from his lawful guardianship. It was also alleged that victim has taken Rs. 2 lakh, many jewellery items and a mobile phone with her.

Sri Kamal Dev Rai, learned counsel for applicant submits that it appears that victim was traced on 09.07.2022 and her statements were recorded under Sections 161 and 164 Cr.P.C.; he further submits that victim has recorded very detailed statement under Section 161 Cr.P.C. wherein she has stated that she went along with named accused persons on her own will and later on she went along with named accused Gopal to many places and other co-accused also met with her and thereafter, she was apprehended by police; though in specific question about rape, victim has stated that named co-accused Gopal has made physical relationship on her consent; name of applicant was neither disclosed in the F.I.R. nor victim's statement under Section 161 Cr.P.C.

Learned counsel further submits that victim in her statement recorded under Section 164 Cr.P.C. has given a short statement wherein in addition to co-accused Gopal, names of Vipin, Vishal and Ajeet (present applicant) were also disclosed to be accused of offence of rape; learned counsel further submits that it appears to be a case of false implication and applicant is not connected with crime as well as that two named co-accused persons Gopal Ji Dubey and Vishal Singh have been granted bail by coordinate Bench of this Court, therefore, applicant, who is in jail since 05.01.2023 may be released on bail during trial.

While opposing bail, Sri Prashant Srivastava, learned Brief Holder appearing for State submits that victim has specifically stated that applicant is one of the accused persons who has committed rape along with three other co-accused and that age of victim is about 14 years, therefore, her consent is immaterial; till date, statement of victim has not been recorded during trial, however, it is not disputed that co-accused persons have already been granted bail though reasons given therein may not be in terms of judgment of Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022) 3 SCC 501 and Brijmani Devi vs. Pappu Kumar, (2022) 4 SCC 497.

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)

In the present case, age of victim is 14 years i.e. a minor girl. Initially, F.I.R. was lodged under Sections 363 and 364 Cr.P.C. against two named co-accused who have been granted bail. Name of applicant was not disclosed either in F.I.R. or in the statement of victim recorded under Section 161 Cr.P.C. and his name was disclosed for the first time in the statement of victim recorded under Section 164 Cr.P.C. without any specific place or date of alleged offence of rape.

However, considering that charges have not been framed and, therefore, statement of victim has not been recorded during trial till date, therefore, Trial Court is directed to frame charges in accordance with law and thereafter record statement of victim, expeditiously, preferably within a period of three months from today, if there is no legal impediment. However, in order to remove apprehension that applicant may influence the victim, it is directed that applicant shall not enter into boundaries of District- Auraiya for a period of three months from today, except for present case or with prior permission of Trial Court.

Let the applicant- Ajeet 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.

(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 immediately.

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.

The bail application is allowed.

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

Order Date :- 15.5.2023

Nirmal Sinha