Allahabad High Court
Prem Kumar vs State Of U.P. on 3 October, 2023
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:190103
Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34965 of 2023
Applicant :- Prem Kumar
Opposite Party :- State of U.P.
Counsel for Applicant :- Aditya Kumar Tripathi
Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. A.K. Tripathi, 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-Prem Kumar, seeking his enlargement on bail in Case Crime No. 45 of 2023, under Section 376 IPC, Police Station-Basrehar, District-Etwah during the pendency of trial.
4. Record shows that in respect of an incident, which is alleged to have occurred on 20.10.2019, an application under Section 156(3) Cr.P.C. was filed which was allowed by the concerned Magistrate. Resultantly, an FIR dated 24.04.2023 came to be registered as Case Crime No. 45 of 2023, under Section 376 IPC, Police Station-Basrehar, District-Etwah. In the aforesaid FIR, 3 persons namely - (1) Prem Kumar (applicant herein), (2) Deen Dayal and (3) Vimla have been nominated as named accused.
5. Learned counsel for applicant contends that though applicant is a named as well as charge sheeted accused inasmuch as, the applicant alone has been charge sheeted vide charge sheet dated 20.06.2023 yet applicant is liable to be enlarged on bail.
6. According to the learned counsel for applicant, the first informant/prosecutrix is the wife of the applicant. The marriage of the prosecutrix was initially solemnized with the elder brother of the applicant. However, on account of civil death of the brother of the applicant, the prosecutrix stepped with the present applicant as his wife. The factum with regard to the marriage of the prosecutrix having been solemnized with the applicant is sought to be substantiated from the document occurring at page 24 of the paper book. On the above premise, he submits that once the prosecutrix is the wife of applicant then no offence under Section 376 IPC can be said to have been committed by the applicant. He, therefore, submits that present criminal proceedings have been engineered on account of extraneous consideration. The prosecutrix is major. As such, no offence under Section 376 IPC can be said to have been made out against the applicant.
7. 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 14.06.2023. As such, he has undergone more than 3 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.
8. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named as well as 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.
9. 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 prima-facie there is delay in lodging the FIR, the said delay remains unexplained up to this stage, since the delay in lodging the FIR has not been explained, the prosecution of the applicant itself cannot be maintained, the judgment of the Supreme Court in P. Rajagopal And Ors. Vs. The State of Tamil Nadu, AIR 2019 SC 2866 (paragraph 8), as per the document occurring at page 23 of the paper book, the prosecutrix is the wife of the present applicant, the prosecutrix is major, prima-facie she is a willing and consenting party, the present prosecution appears to have been initiated on account of some ulterior motive, the clean antecedents of the 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, therefore, irrespective of the objection 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.
10. Accordingly, the bail application is allowed.
11. Let the applicant-Prem Kumar, 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.
12. 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
