Sunil Kumar Bind vs State Of U.P. And 3 Others
2023 Latest Caselaw 25720 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:183701
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13996 of 2023
 

 
Applicant :- Sunil Kumar Bind
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Upendra Upadhyay,Birendra Singh,Yash Pratap Singh
 
Counsel for Opposite Party :- G.A.,Mohd. Jamshed Khan
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr.Yash Pratap Singh, the learned counsel for applicant and the learned A.G.A. for State and Mr. Mohd. Jamshed Khan, the learned counsel for first informant.

2. Perused the record.

3. At the very outset, the learned A.G.A. submits that notice of present application for bail has been served upon first informant opposite party 4 on 26.3.2023. However, in spite of above, no one has put in appearance on behalf of the first informant opposite party 4 to oppose this application for bail.

4. This application for bail has been filed by the applicant Sunil Kumar Bind seeking his enlargement on bail in Case Crime No. 255 of 2022, under Sections 376-D, 504, 506, 452 IPC, 3/4 POCSO Act & 3(2)(V), 3(1) (Da) (Dha) SC/ST Act, Police Station Nand Ganj, District Ghazipur, during the pendency of the trial.

5. Record shows in respect of an incident which is alleged to have occurred on 13.12.2022, a delayed F.I.R. dated 15.12.2022 was lodged by first informant Smt. Sajni Devi (mother of the prosecutrix) and was registered asCase Crime No. 255 of 2022, under Sections 376-D, 504, 506, 452 IPC, 3(2)(V), 3(1)(Da), 3(1)(Dha) SC/ST Act & 3/4 POCSO Act, Police Station Nand Ganj, District Ghazipur. In the aforesaid F.I.R. two persons namely (i) Mangla Bind and (ii) Sunil Bind have been nominated as named accused.

6. Learned counsel for applicant contends that though the applicant is a named as well as charge sheeted accused inasmuch as charge sheet has been submitted against applicant and other named accused on 3.3.2023 yet he is innocent and is liable to be enlarged on bail.

7. It is next contended that named and charge sheet co-accused Mangal Bind has already been enlarged on bail by this Court vide order dated 13.9.2023 passed in Criminal Misc. Bail Application No. 39906 of 2023 (Mangal Bind Vs. State of U.P.). For ready reference, same is reproduced hereinunder:-

"1. Lawyers are abstaining from work. However, I have gone through the record along with learned A.G.A. for the State.

2. It has been averred in the present bail application that the applicant is innocent and has been falsely implicated in the present case. The victim, who is aged about 17 years has stated in her statement recorded under Section 161 Cr.P.C. that she has called the applicant at her house, however, the friend of applicant namely, Sunil also came with the applicant at her house and she has made physical relation with out of her consent, thereafter the co-accused Sunil has also committed wrong and when she raised alarm, then her sister-in-law (Bhabhi) came and both of them ran away. Likewise, in the same manner, the victim has also stated in her statement recorded under Section 164 Cr.P.C. The victim in her Majeed (subsequent) statement has stated that only the applicant was present in the alleged incident. There are material contradictions in the statements of the victim. It has been thus averred that in fact, the victim is a consenting party and when the Bhabhi of the victim has entered into her room, the applicant has been falsely implicated in the present case. Several other averments have been made in the bail application in order to demonstrate the falsity of the allegations made against the applicant have also been placed before the Court. The circumstances which, according to the averments, led to the false implication of the accused have also been mentioned. It has also been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. The applicant is languishing in jail since 06.01.2023 having no criminal history.

3. Per contra, learned A.G.A. has opposed the prayer for bail of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserve any indulgence. In case the applicant is released on bail he will misuse the liberty of bail.

4. Considering the entire facts and circumstances of the case, averments made on behalf of the applicant in the instant bail application, nature of evidence, and all attending facts and circumstances of the case, without expressing any opinion on merits of the case, this Court is of the view that the applicant has made out a case for bail. Hence the bail application is allowed.

5. Let applicant Mangal Bind involved in Case Crime No.255 of 2022 under Sections 376D, 504, 506, 452 I.P.C., Section 3/4 of POCSO Act, Section 3 (2) (V), 3 (1) (Da) (Dha) of SC/ST Act, Police Station Nandganj, District Ghazipur, be released on bail on furnishing a personal bond and two heavy local sureties each of the like amount to the satisfaction of the court concerned subject to the following conditions:-

I. The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and 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 counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

III. In case, the applicant misuses the liberty of bail and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the 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 of the Indian Penal Code.

IV. The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

6. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted. "

8. On the above premise he submits that the case of present applicant and that of named/charge sheeted co-accused Manal Bind is similar and identical. There is no such distinguishing feature in the case of the present applicant from aforementioned co-accused so as to distinguish his case from above mentioned co-accused and deny him bail. It is further contended that the role of dislodging the modesty of the prosecutrix has been assigned to both the named accused. He, therefore contends that in view of above and for and facts and reasons recorded in the bail order of co-accused Mangal Bind, applicant is also liable to be enlarged on bail on the ground of parity.

9. Applicant has criminal history of four cases. However the same has been sufficiently explained in the supplementary affidavit filed by the learned counsel for applicant in Court today which is taken on record. Referring to the three judges judgment of the Supreme Court in Brijmani Devi Vs. Pappu Kumar and another (2022) 4 SCC 497, he submits that that irrespective of the criminal history of the applicant yet applicant can be enlarged on bail. Applicant is in jail since 2.3.2023. As such has has undergone more than 6-1/2 months of incarceration. 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 the applicant stands crystallized. However up to this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during pendency of trial. He, therefore, 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 cooperate with the trial.

10. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named and charge sheeted accused, therefore he does not deserve any indulgence by this Court. The prosecutrix is a young girl aged about 17 years as per the prosecution story unfolded in the F.I.R. Therefore applicant does not deserve any indulgence by this Court. Criminality committed by the named/charge sheeted accused is joint and common inasmuch as both have been charge sheeted under Section 376-D I.P.C. It is thus urged that in view of above criminality committed by the named/charge sheeted accused is incapable of separation and segregation. As such no exception can be carved out in the case of the present applicant. On the above premise, the learned A.G.A. vehemently urged that no sympathy be shown by this Court in favour of applicant. However he could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

11. Having heard the learned counsel for applicant, the learned A.G.A. for State, and upon perusal of record, evidence, accusations made, complicity of accused, nature and gravity of offence and coupled with the fact that named/charge sheeted co-accused Mangal Bind has already been enlarged on bail, the learned A.G.A. could not point out any such circumstance from the record distinguishing the case of present applicant from aforementioned bailed out co-accused so as to deny him bail, 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 the 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 the applicant during the pendency of trial, as per the medical opinion the prosecutrix is major as she is said to be aged about 18 years, prima facie the provisions of the POCSO Act are not attracted, the explained criminal history of the applicant, the periods of incarceration undergone, 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 the applicant has made out a case for bail.

12. Accordingly, the bail application is allowed.

13. Let the applicantSunil Kumar Bind involved in aforesaid case be released on bail on his furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.

i. The applicant will not tamper with the evidence during the trial.

ii. The applicant will not pressurize/ intimidate the prosecution witness.

iii. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.

ix. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.

x. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.

14. In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.

Order Date :- 21.9.2023

Aiman