Allahabad High Court
Smt. Abhilasha vs State Of U.P. And Another on 3 May, 2024
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:80018
Court No. - 65
Case :- CRIMINAL MISC. BAIL CANCELLATION APPLICATION No. - 435 of 2022
Applicant :- Smt. Abhilasha
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Hanuman Prasad Kushwaha
Counsel for Opposite Party :- G.A.,Jaysingh Yadav
Hon'ble Saurabh Shyam Shamshery,J.
1. This bail cancellation application was filed on 09.09.2022. The accused was granted bail by co-ordinate Bench of this Court and for reference order is in its entirety is reproduced hereinafter :-
"Heard learned counsel for the applicant, Sri Sanjay Singh, learned AGA-I for the State and perused the record.
The submission of learned counsel for the applicant is that the applicant has been falsely implicated in the present case due to ulterior motive. He is innocent and has no criminal antecedent. It is further submitted that it is a counterblast case, the alleged incident is of the date 23.5.2021 whereas the first information to that effect was lodged on 2.12.2021, thus there is about seven months delay in lodging first information report without any plausible explanation. It is next contended that a concocted and false story has been set up by the prosecution whereas the applicant did not commit any offence as alleged. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has 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. The applicant is languishing in jail since 5.12.2021. He undertakes that he will not misuse the liberty, if granted, therefore, he may be released on bail.
Learned counsel appearing for the opposite party vehemently opposed the prayer.
Having heard submissions of learned counsel of both sides, considering nature of accusation, severity of punishment in case of conviction, nature of supporting evidence, prima facie satisfaction in support of the charge, reformative theory of punishment, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh v. State of U.P. and another, (2018) 3 SCC 22, without expressing any view on the merits of the case, I find it to be a case of bail.
Let the applicant- Hari Shankar involved in Case Crime No. 401 of 2021, under Sections 147, 376, 452, 323, 506 IPC, Police Station Talbehat, District Lalitpur be released on bail, on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned, with the following conditions:
(1) The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, or otherwise during the investigation or trial;
(2) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. He 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;
(3) 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.; and
(4) In case, the applicant misuses the liberty of bail during trial 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, the trial court shall initiate proceedings against him, in accordance with law under Section 174-A of the Indian Penal Code.
The identity, status and residential proof of sureties will be verified by the court concerned and in case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail and send the applicant to prison.
It is clarified that the observations, if any, made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the ultimate merits of the case. "
2. Sri Hanuman Prasad Kushwaha, learned counsel for applicant has referred paragraph Nos.13 and 14 in support of his submission that accused after coming out from jail has threatened the complainant side and for reference the said paragraphs are mentioned hereinafter:-
"13. That, the opposite party No.2 is free and pressurizing the applicant to withdraw the case which amounts tempering of evidence, with this regard applicant has filed an application 07.06.2022, before Superintendent of Police, Lalitpur, through registered post. The true copy of the application 07.06.2022 is being filed herewith and marked as Annexure No.8 to this affidavit.
14. That the Opposite Party No.2 and other co-accused, again and again giving the threat to the complainant/ applicant & witnesses and he is misusing the liberty of bail given by this Hon'ble Court."
3. The above submissions are opposed by Sri Jaysingh Yadav, learned counsel for accused and he refers paragraph Nos. 11, 12 and 13 of counter affidavit, which are reproduced hereinafter :-
"11. That real fact is that the N.C.R. lodged by opposite party no.2 against the husband and family of the victim on 26.5.2021 for offence under section 323, 504 IPC, case in the aforesaid the opposite party no.2 has received injury and N.C.R. under section 155 (2) filed by the applicant is still pending. A copy of the N.C.R. and Injury report of the opposite party no.2 is being filed herewith and marked as Annexure No.CA-1 to this affidavit.
12. That real fact is that after knowledge of the N.C.R. the applicant only pressurized the opposite party no.2 lodged false and concocted First Information Report against the opposite party no.2 and his family members through application under section 156(3) Cr.P.C. on 28.5.2021 for showing false occurrence dated 23.05.2021.
13. That the husband of the victim namely Jagbhan and other family members beaten the opposite party no.2 and his family members Sujan, Chandrabhan, Kallu, Jayanti on 5.11.2021 thereafter father of the opposite party no.2 filed an application under section 156(3) Cr.P.C. before C.J.M. Lalitpur which is still pending. A copy of the application under section 156(3) Cr.P.C. filed by the father of the opposite party no.2 dated 5.11.2021 and medical reports are being filed herewith and marked as Annexure No.CA-2 to this affidavit."
4. Heard counsel for parties and perused the record.
5. As referred above, co-ordinate Bench has granted bail after considering rival submissions. The aforesaid grounds for cancellation of bail are not sufficient since despite this application is pending for last two years, applicant has not taken any step to approach learned Magistrate to lodge the FIR in the case. It has also been brought on record that charges has still not be framed, however, there is nothing on record except vague averment that accused are not appearing during trial. The Court also takes note that accused has also lodged an N.C.R. against complainant side, however, outcome of it is also not on record.
6. In the aforesaid circumstances, in absence of any ground to allow application, therefore, in view of judgment passed by Supreme Court in Himanshu Sharma vs. State of Madhya Pradesh, 2024 SCC OnLine SC 187 also I do not find it is a fit case to cancel the bail, however, it is directed that learned Trial Court will conclude the trial preferably within period of six months from today. The accused person will not grant any exemption so that trial may proceed expeditiously and in case any application for exemption is filed on vague ground, Trial Court will have liberty to cancel the bail.
7. The witnesses are also entitled to get benefit of Witness Protection Scheme, 2018 and for that they will have liberty to move proper application before concerned authority.
8. Accordingly, application is disposed of with aforesaid observation.
9. Registrar (Compliance) to take steps.
Order Date :- 3.5.2024
P. Pandey
