Chandrapal vs State Of U.P.
2023 Latest Caselaw 26715 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:189809
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38724 of 2023
 

 
Applicant :- Chandrapal
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Ram Neta Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Ram Neta Singh, the learned counsel for applicant and the learned A.G.A. for State.

2. Perused the record.

3. This application for bail has been filed by applicant-Chandrapal, seeking his enlargement on bail in Case Crime No. 94 of 2023, under Sections 376, 511, 354, 354-B, 323, 504, 506 IPC, Police Station-Sirauli, District-Bareilly during the pendency of trial.

4. Record shows that in respect of an incident, which is alleged to have occurred on 11.04.2023, a delayed FIR dated 12.04.2023 was lodged by first informant-Amar Singh (father of the prosecutrix) and was registered as Case Crime No. 94 of 2023, under Sections 354-B, 323, 504, 506 IPC, Police Station-Sirauli, District-Bareilly. In the aforesaid FIR, three persons namely - (1) Chandrapal, (2) Rajan Singh and (3) Munendra have been nominated as named accused.

5. The gravamen of the allegations made in the FIR to the effect that named accused are alleged to have dislodged the modesty of the prosecutrix.

6. After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. The statements of the prosecutrix under Sections 161/164 Cr.P.C. were recorded. Same are on record at pages 23 and 31 of the paper book. The prosecutrix in her aforesaid statement has resiled from basic prosecution story as unfolded in the FIR and has now disclosed a new story, which is totaly alien to the FIR. The prosecutrix was also requested for her internal medical examination. However, the prosecutrix refused to give her consent for internal medical examination. As per the external examination of the prosecutrix, no such signs were found on the body of the prosecutrix so as to denote commission of deliberate sexual assault. On the basis of above and other material collected by Investigating Officer during course of investigation, Investigating Officer came to the conclusion that complicity of applicant is fully established in the crime in question. He, accordingly, submitted the charge sheet dated 26.05.2023.

7. Learned counsel for applicant contends that though applicant is a named/charge sheeted accused yet he is liable to be enlarged on bail. Admittedly, the FIR, giving rise to present criminal proceedings, was lodged on the disclosure made by the prosecutrix to her father. However, in the FIR, there is no allegation with regard to the commission of rape upon the prosecutrix. Therefore, the statements of the prosecutrix under Sections 161/164 Cr.P.C. are over and above the basic prosecution case unfolded in the FIR, it is true that the FIR is not the encyclopedia of the prosecution story but it must be disclose the basic prosecution case. To buttress his submission, he has relied upon the following three judgments of the Supreme Court;-

(i). Manoj and Others Vs. State of Maharashra, (1999) 4 SCC 268,

(ii). Subhash Kumar Vs. State of Uttarakhand, (2009) 6 SCC 641,

(iii). Achhar Singh Vs. State of M.P. (2021) 5 SCC 543,

No explanation has come forward from the departure so made from the basic prosecution case as unfolded in the FIR. Even otherwise, the statements of the prosecutrix under Sections 161/164 Cr.P.C. are contradictory which contradiction remain unexplained up to this stage. Apart from above, the prosecutrix is major. She is a willing and consenting party.

8. Even otherwise, applicant is a man of clean antecedents inasmuch as, he has no criminal history to his credit except the present one. Applicant is in jail since 18.05.2023. As such, he has undergone more than 4 and 1/2 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such incriminating circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. On the above premise, he submits that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

9. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named/charge sheeted accused, therefore, he does not deserve any indulgence by this Court. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

10. Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of accused coupled with the fact that in the FIR giving rise to present criminal proceedings, no allegation regarding commission of deliberate sexual assault upon the prosecutrix has been made, admittedly, the FIR was lodged on the disclosure made by the prosecutrix to her father, the prosecutrix in her subsequent statements under Sections 161/164 Cr.P.C. has departed from the basic prosecution case, the departure so made from the basic prosecution case as unfolded in the FIR remains unexplained, no explanation has come forward with regard to the new and alien story which has emerged in her subsequent statement referred to above, resultantly, the statement of the prosecutrix referred to above suffer from the vice of the embellishment, contradiction and exaggeration, which remains unexplained up to this stage, the prosecutrix is major, prima-faci, she is a willing and consenting party, the clean antecedents of applicant, the period of incarceration undergone, the police report in terms of Section 173(2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet the learned A.G.A. could not point out any such circumstance from the record, necessitating the custodial arrest of applicant during the pendency of trial, co-accused Rajan Singh who is similarly related and circumstanced co-accused, has already enlarged on bail, the learned A.G.A. could not point out any such distinguishing feature in the case of applicant from aforementioned co-accused so as to deny him bail, therefore irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail, but without making any comments on the merits of the case, applicant has made out a case for bail.

11. Accordingly, the bail application is allowed.

12. Let the applicant-Chandrapal, be released on bail in the aforesaid case crime number on his 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 SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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.

(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) RECORDING OF STATEMENT UNDER SECTION 313 CR.P.C. IF IN THE OPINION OF THE TRIAL COURT ABSENCE OF THE APPLICANT IS DELIBERATE OR WITHOUT SUFFICIENT CAUSE, THEN IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT SUCH DEFAULT AS ABUSE OF LIBERTY OF BAIL AND PROCEED AGAINST THE HIM/HER IN ACCORDANCE WITH LAW.

(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

13. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

Order Date :- 3.10.2023

Vinay