Allahabad High Court
Shiva Sharma vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 14 May, 2024
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:36828
Court No. - 13
Case :- CRIMINAL APPEAL No. - 3420 of 2023
Appellant :- Shiva Sharma
Respondent :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another
Counsel for Appellant :- Anil Mishra,Naveen Srivastava,Vikas Sharma
Counsel for Respondent :- G.A.,Pawan Kumar Maurya
Hon'ble Saurabh Lavania,J.
1. Counter affidavit, filed by the State-respondent, is taken on record.
2. Case called out. No one appeared on behalf of the respondent No. 2 despite service of notice. However, the name of Sri Pawan Kumar Maurya, Advocate is shown in the cause list as counsel for the respondent No. 2. Learned AGA is present in the Court. 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 04.10.2023 passed by Special Judge, SC/ST (P.A.) Act/ Additional District and Session Judge, Hardoi, in Bail Application No. 2828 of 2023, arising out of F.I.R/ Case Crime No. 316 of 2023, under Sections 376, 506 I.P.C., and Sections 3(2)(v),3(2)(v) A of SC/ST Act, Police Station-Shahabad, District-Hardoi.
5. While pressing the present appeal counsel for the appellant submits that the case of the appellant is squarely covered by 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.
6. In continuation, counsel for the appellant submitted that the appellant, who is in jail since 01.09.2023 and has no criminal history, has been falsely implicated in the instant case and the entire story against the appellant, indicated by the victim and that the appellant established physical relations with the victim on the pretext of marriage is false and concocted.
7. The F.I.R. lodged on 18.06.2023, is completely false and concocted and if the case of prosecution is taken on its face value then in that event it is case of consent as the victim, at relevant point was aged about 19 years.
8. It is stated that infact to settle the scores related to Nagar Nigam election held in 2023 as also to get the financial benefit from the State Exchequer, the present F.I.R. has been lodged.
9. It is also stated that the victim improved the version at subsequent stage as initially the FIR was lodged under Section 493 IPC and the charge-sheet has been filed under Section 376/506 IPC and Section 3(2)(v) A of SC/ST Act. Thus, the story of prosecution is not intact.
10. He also stated that a perusal of documents annexed as Annexure No. 10 including the affidavit of the victim filed before S.P. Hardoi, would show that under pressure the FIR was lodged.
11. 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.
12. He further submitted that even the case set up by the prosecution is not supported the by any medical evidence.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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 since 01.09.2023 and averments in regard to criminal antecedent of the appellant, as also the affidavit of the victim, aged about 19 years, which is on record, 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.
18. Order dated 04.10.2023 passed by Special Judge, SC/ST (P.A.) Act/ Additional District and Session Judge, Hardoi, in Bail Application No. 2828 of 2023, arising out of F.I.R/ Case Crime No. 316 of 2023, under Sections 376, 506 I.P.C., and Sections 3(2)(v),3(2)(v) A of SC/ST Act, Police Station-Shahabad, District-Hardoi, is hereby set aside.
19. Let appellant- Shiva Sharma 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.
20. 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
21. 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 :- 14.5.2024
Jyoti/-
