Raju Turha vs State Of U.P.
2023 Latest Caselaw 29901 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:206551
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40857 of 2023
 

 
Applicant :- Raju Turha
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Bachcha Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Bachcha 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-Raju Turha, seeking his enlargement on bail in Case Crime No. 424 of 2023, under Sections 376, 506 IPC, Police Station-Kotwali, District-Ballia during the pendency of trial.

4. Record shows that in respect of an incident, which is alleged to have occurred on 01.08.2023, a delayed FIR dated 08.08.2023 was lodged by first informant/prosecutrix-Preeti and was registered as Case Crime No. 424 of 2023, under Sections 376, 506 IPC, Police Station-Kotwali, District-Ballia. In the aforesaid FIR, applicant-Raju Turha has been nominated as solitary named accused.

5. The gravamen of the allegations made in the FIR is to the effect that named accused entered the house of the prosecutrix in a clandestine manner at around 10:00 to 11:00 PM and thereafter, 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 was recorded under Sections 161/164 Cr.P.C. wherein the prosecutrix has supported the FIR. However, the prosecutrix has refused for her internal medical examination. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of applicant is established in the crime in question. He, accordingly, submitted the charge sheet dated 16.08.2023 whereby applicant has been charge sheeted under Sections 376, 506 IPC.

7. Learned counsel for applicant contends that though applicant is a named as well as charge sheeted accused yet he is liable to be enlarged on bail. The prosecutrix is major, as she was aged about 20 years on the date of occurrence. The occurrence giving rise to present criminal proceedings has occurred in the house of the prosecutrx itself. In the absence of medical evidence, the bona-fide of the prosecutrix is itself doubtful. Prima-facie, the prosecutrix is a willing and consenting party. On the above premise, he, therefore, submits that applicant is liable to be enlarged on bail.

8. Learned A.G.A. submits that applicant has criminal history of one case under Sections 352, 452 IPC. When confronted with above, the learned counsel for applicant contends that applicant is not guilty of committing any heinous or serious offence. Therefore, in view of law laid down by the three Judges Bench judgment of the Supreme Court in Brijmani Devi Vs. Pappu Kumar and Anohter, (2022) 4 SCC 497. The applicant is not liable to be denied bail simply on the ground of criminal history. Applicant is in jail since 09.08.2023. As such, he has undergone more than 2 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 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 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.

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, complicity of accused and coupled with the fact that there is delay in lodging the FIR, as the delay in lodging the FIR has not been explained either in the FIR itself nor in the statement of the prosecutrix recorded under Section 161 Cr.P.C., therefore, the prosecution of the applicant itself cannot be prima-facie maintained, in view of the law laid down by the Apex Court in P. Rajagopal And Ors. Vs. The State of Tamil Nadu, AIR 2019 SC 2866/2019(5) SCC 403 (paragraph 8), the prosecutrix is major, prima-facie, the prosecutrix appears to be a willing and consenting parity, in the absence of medical evidence, the bona-fide of the prosecutrix is itself doubtful inasmuch as, the place of occurrence is the house of prosecutrix itself, the explained criminal history 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 in spite of above, 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 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-Raju Turha, 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 :- 30.10.2023

Vinay