Allahabad High Court
Ashwani Kumar Dubey vs State Of U.P. Thru. Prin. Secy. Home ... on 2 May, 2024
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:34309
Court No. - 13
Case :- CRIMINAL APPEAL No. - 3652 of 2023
Appellant :- Ashwani Kumar Dubey
Respondent :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Another
Counsel for Appellant :- Vaibhav Srivastava
Counsel for Respondent :- G.A.
Hon'ble Saurabh Lavania,J.
1. Case called out.
2. As per Annexure No. 1 to the counter affidavit filed by the State service of notice upon the respondent No. 2 is sufficient. However, no one is present on behalf of the respondent to oppose the appeal. In the aforesaid background of the case, the Court proceeded to hear the appeal on merits.
3. Heard counsel for the appellant, learned A.G.A. for the State and perused the record.
4. The present appeal has been filed under Section 14-A (2) of Scheduled Castes and Scheduled Tribes Act, 1989 against the impugned order dated 30.09.2023 passed by Special Judge, SC/ST Act, Ayodhya/Faizabad in Bail Application No. 55 of 2023, arising out of F.I.R/ Case Crime No. 0439 of 2023, under Sections 406, 376, 504, 506 I.P.C., and Section 3(2)(v) of SC/ST Act, Police Station- Kotwali Nagar, District- Ayodhya/Faizabad.
5. While pressing the present appeal counsel for the appellant submits that the allegations in the FIR as also during the investigation against the appellant are to the effect that the appellant established physical relations with the victim on false promise of marriage as also providing job though the same are completely incorrect.
6. It is stated that if the story of the prosecution is taken on its face value even then in the light of the judgment(s) of Hon'ble Apex Court rendered in the case of Deepak Gulati vs. State of Haryana (2013) 7 SCC 675; Sonu @ Subhash Kumar vs. State of U.P. and Another (2021) 7 SCC; and Mandar Deepak Pawar vs. State of Maharashtra and Another 2022 SCC OnLine SC 2110, the chances of the conviction are extremely bleak.
7. In continuation, it is further stated that the appellant and the victim were having affair and for some reasons, the relationship could not be continued as such the victim belonging to SC/ST category levelled allegations in the FIR and during investigation as also before the Court for creating pressure over the appellant to continue with the relationship and also to get financial benefit from the State exchquer.
8. It is further stated that the appellant, having no criminal history, is in jail since 21.07.2023 for committing no offense.
9. He further submitted that the chances of conviction of the appellant in the instant case are extremely bleak in view of the law related to establishing relationship on the pretext of false promise of marriage.
10. He also stated that as per the observations made by Hon'ble Apex Court in the above referred judgments to attract the offence under Section 376 IPC, the allegation should be to the effect that from the inception, the consent by the victim is a result of a false promise to marry and from the F.I.R., it reflects that the said contents in its true spirit are missing.
11. He lastly submitted that all the aforesaid aspects of the case were not considered by the trial court, as such, the present appeal is liable to be allowed and the impugned order may be set aside and the appellant be enlarged on bail.
12. Learned A.G.A. for the State opposed the prayer for bail, however, he could not dispute the aforesaid contention of counsel for the appellant.
13. Considered the submissions advanced by the counsel for the appellant, learned A.G.A. for the State and all the relevant documents placed on record.
14. Upon due consideration of the facts and circumstances of the case, submissions of counsel for the appellant and learned A.G.A., F.I.R., impugned order, as also the observations made by Hon'ble Apex Court in the judgments, referred above, including that the appellant is in jail since21.07.2023 having no criminal antecedent as also the chances of conviction of the appellant in the instant case, this Court finds that the present appeal is liable to be allowed. Accordingly, it is allowed.
15. The order dated 30.09.2023 passed by Special Judge, SC/ST Act, Ayodhya/Faizabad in Bail Application No. 55 of 2023, arising out of F.I.R/ Case Crime No. 0439 of 2023, under Sections 406, 376, 504, 506 I.P.C., and Section 3(2)(v) of SC/ST Act, Police Station- Kotwali Nagar, District- Ayodhya/Faizabad, is hereby set aside.
16. Let appellant- Ashwani Kumar Dubey be released on bail in the aforesaid case crime number on his furnishing personal bond of Rs.25,000/- (Rupees Twenty Five Thousand Only) and two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following additional conditions :-
(i) The appellant shall cooperate with the prosecution during trial.
(ii) The appellant shall not tamper with the evidence during trial.
(iii) The appellant shall not pressurize/intimidate the prosecution witness(s).
(iv) The appellant shall not commit an offence.
(v) The appellant 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.
(vi) The appellant shall remain present before the trial court on each date fixed, either personally or through counsel.
(vii) The appellant shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court.
(viii) The appellant shall remain present, in person, before the trial court on the dates fixed for recording of statement under Section 313 Cr.P.C.
17. In case of default of above conditions, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law
18. As this order relates to enlargement of the appellant on bail, it is clarified that observation(s) made in this order shall have no bearing on the merits of the case and the trial court shall not be influenced by any observation(s) made in this order.
Order Date :- 2.5.2024
Mohit Singh/-
