Gyan Bahadur vs State Of U.P. And 3 Others
2023 Latest Caselaw 26083 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:185528
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34624 of 2023
 

 
Applicant :- Gyan Bahadur
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Sanjay Vikram Singh,Amar Jeet
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Amar Jeet, the learned counsel for applicant and the learned A.G.A. for State.

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 05.08.2023. However, in spite of service of notice, no one has put in appearance on behalf of first informant-opposite party 4 to oppose this application for bail.

4. This application for bail has been filed by applicant-Gyan Bahadur, seeking his enlargement on bail in Case Crime No. 331 of 2022, under Sections 376, 506 IPC, Sections 3/4 POCSO Act and Section 67 I.T. Act, Police Station-Phoolpur, District-Prayagraj during the pendency of trial.

5. Record shows that an FIR dated 30.07.2022 was lodged by first informant namely Geeta Devi (mother of the prosecutrix) and was registered as Case Crime No. 331 of 2022, under Sections 376, 506 IPC, Sections 3/4 POCSO Act and Section 67 IT Act, Police Station-Phoolpur, District-Prayagraj. In the aforesaid FIR, applicant-Gyan Bahadur has been nominated as solitary named accused.

6. The gravamen of the allegations made in the FIR to the effect that named accused is guilty of deliberately and forcibly dislodging the modesty of the minor daughter of the first informant i.e. the prosecutrix by committing rape upon her.

7. 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 were recorded under Sections 161 and 164 Cr.P.C. wherein the prosecutrix has categorically stated that though she herself went to the house of the applicant but her modesty was forcibly and deliberately dislodged by the applicant. The prosecutrix has further stated that her obscene photographs were snaped and thereafter, uploaded on the facebook. The prosecutrix, however, denied her internal medical examination. As per the medical opinion, the prosecutrix is said to be aged about 18 years. The Investigating Officer examined the first informant and other witnesses under Section 161 Cr.P.C. Witnesses so examined have supported the FIR. On the basis of above and other material collected by the Investigating Officer, during course of investigation, he came to the conclusion that complicity of applicant is fully established in the crime in question. He, accordingly, submitted the charge sheet dated 02.04.2023 whereby applicant has been charge sheeted under Sections376, 506 IPC, Sections 3/4 POCSO Act and Section 67 IT Act.

8. 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 medical evidence does not support the ocular version of the occurrence inasmuch as, the prosecutrix has herself refused for her internal medical examination. With reference to the statements of the prosecutrix recorded under Sections 161/164 Cr.P.C., the learned counsel for applicant submits that the prosecutrix is a willing and consenting party. As per the medical opinion, the prosecutrix is aged about 18 years. Applicant and the prosecutrix are neighbours. Present criminal proceedings have been engineered on account of some ulterior motive. Attention of the Court was then invited to the FIR giving rise to the present criminal proceedings. On the basis of above, it is urged by the learned counsel for applicant that the day, date and time of occurrence has not been mentioned in the requisite column of the FIR. Moreover, the details regarding the occurrence have not been mentioned in the body of the FIR either. He, therefore, contends that the FIR is highly belated. However, neither in the FIR nor in the statement of the first informant recorded under Section 161 Cr.P.C., there is any explanation with regard to the delay in lodging the FIR. Inviting the attention of the Court to the judgment of the Supreme Court in P. Rajagopal And Ors. Vs. The State of Tamil Nadu, AIR 2019 SC 2866 (paragraph 8), he submits that since the delay in lodging the FIR has not been explained, the prosecution of the applicant itself cannot be maintained.

9. 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 24.03.2023. As such, he has undergone more than 6 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 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, 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 co-operate 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 as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. Applicant is guilty of dislodging the modesty of the prosecutrix who is a young girl below 18 years of age. As such, no sympathy be shown by this Court in favour of applicant. 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.

11. 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 the prosecutrix is major, she is a willing and consenting party inasmuch as, she herself accompanied the applicant, the unexplained delay in lodging the FIR, the judgment of the Supreme Court referred to above, prima-facie, the medical evidence does not support the ocular version of the occurrence inasmuch as, the prosecutrix has herself refused for her internal medical examination, present criminal proceedings have been engineered on account of some ulterior motive, the day, date and time of occurrence have not been mentioned in the requisite column of the FIR either, the FIR is highly belated, moreover, the details regarding the occurrence has not been mentioned in the body of the FIR also, 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, 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, the clean antecedents of applicant, the period 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, applicant has made out a case for bail.

12. Accordingly, the bail application is allowed.

13. Let the applicant-Gyan Bahadur, 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.

14. 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 :- 25.9.2023

Vinay