Saurabh Gupta vs State Of U.P. Thru. Secy. Homes Civil ...
2024 Latest Caselaw 19895 ALL

Allahabad High Court

Saurabh Gupta vs State Of U.P. Thru. Secy. Homes Civil ... on 30 May, 2024

Author: Saurabh Lavania

Bench: Saurabh Lavania

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2024:AHC-LKO:41335
 
Court No. - 13
 
Case :- CRIMINAL APPEAL No. - 773 of 2024
 
Appellant :- Saurabh Gupta
 
Respondent :- State Of U.P. Thru. Secy. Homes Civil Sectt. Lko. And Another
 
Counsel for Appellant :- Akarshan Bajpai
 
Counsel for Respondent :- G.A.,Avinash Mishra,Saurabh Pandey
 

 
Hon'ble Saurabh Lavania,J.
 

C.M. Application No. IA No. Nil of 2024 (Application for Correction of Memo of Appeal)

1. Heard.

2. Considering the reasons indicated in the affidavit filed in support of application seeking corrections/amendments in the memo of appeal, the same is allowed.

3. Learned counsel for the appellant is permitted to incorporate necessary corrections/amendments in the memo of appeal during the course of the day.

(Order on Appeal)

1. Today when the case was called out. Bench Secretary of this Court has informed that Shri Saurabh Pandey, learned counsel for the respondent no. 2 has sent illness slip.

2. Opposing the illness slip, Learned counsel for the appellant stated that on 10.05.2024, this Court passed the specific order that the case would not be adjourned on account of absence of learned counsel for the respondent no. 2 and accordingly, taking note of the same as also that the affidavit in response to the present appeal has already been filed by the State, the matter be heard finally.

3. The order dated 10.05.2024, referred above, is quoted herein-under:

"Counter affidavit filed by the State in Court today is taken on record.

Vakalatnama filed by Shri Avinash Mishra, Advocate and Shri Saurabh Pandey, Advocate on behalf of the respondent no. 2 in Court today is taken on record.

One week' and no more time, as prayed, is granted to the respondent no. 2 to file the response to the present appeal.

List/put up this case on 21.05.2024 as fresh in top ten cases showing the name of Shri Avinash Mishra, Advocate and Shri Saurabh Pandey, Advocate as counsel for the respondent no. 2.

It is made clear that on the next date of listing, the case would not be adjourned on account of absence of learned counsel for the respondent no. 2.

In the meantime, learned counsel for the appellant, if so choose, may file the rejoinder affidavit to the counter affidavit filed by the State."

4. It would be apt to indicate that after 10.05.2024, the case was listed on 21.05.2024 and on this date, the following order was passed:

"Counter affidavit filed by the State is taken on record.

List this case in the next week as fresh."

5. Taking note of the specific observation made vide order dated 10.05.2024, this Court proceeded to hear the appeal on merits.

6. Heard counsel for the appellant, learned A.G.A. for the State and perused the record.

7. The present appeal has been filed under Section 14-A (2) of Scheduled Castes and Scheduled Tribes Act, 1989 against the impugned order dated 16.12.2023 passed by Special Judge, SC/ST Act, Lucknow in Bail Application No. 10159 of 2023, arising out of F.I.R/ Case Crime No. 578 of 2023, under Sections - 376, 504, 506 I.P.C., and Section 3(2)(v) of SC/ST Act, Police Station- Vibhuti Khand, District- Lucknow.

8. While pressing the present appeal counsel for the appellant submits that if the case of the prosecution is taken on its face value then in that event 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.

9. In continuation, counsel for the appellant submitted that the appellant, who is in jail since 09.11.2023 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.

10. The F.I.R. lodged on 07.11.2023, is completely false and concocted and if it is true then it is a case of consent as the victim was major and accordingly it can be deduced that the physical relations were established by the appellant with the victim with her consent and for some reasons, their relationship could not continue and as such to pressurize the appellant, as also to get the financial benefit from the State Exchequer, the present F.I.R. has been lodged after having relation for about eight years.

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 in the F.I.R. 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 08.11.2023 and has no criminal history as also the submissions regarding physical relations 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 16.12.2023 passed by Special Judge, SC/ST Act, Lucknow in Bail Application No. 10159 of 2023, arising out of F.I.R/ Case Crime No. 578 of 2023, under Sections - 376, 504, 506 I.P.C., and Section 3(2)(v) of SC/ST Act, Police Station- Vibhuti Khand, District- Lucknow, is hereby set aside.

19. Let appellant- Saurabh Gupta 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 :- 30.5.2024/Mohit Singh/-