Allahabad High Court
Mahendra vs State Of U.P. Thru. Prin. Secy. Home ... on 28 February, 2023
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 11 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3065 of 2023 Applicant :- Mahendra Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. Counsel for Applicant :- Pradeep Kumar Tripathi Counsel for Opposite Party :- G.A. Hon'ble Rajesh Singh Chauhan,J.
Heard learned counsel for the applicant and the learned Additional Government Advocate for the State.
As per learned counsel for the applicant, the present applicant (Mahendra) is languishing a jail since 18.04.2022 in Case Crime No.171 of 2022, under Sections 323, 504, 392 and 376 I.P.C., Police Station-Mishrikh, District-Sitapur. Further, he has been falsely implicated in this case as he has not committed any offence as alleged in the prosecution story so narrated in the First Information Report (in short F.I.R.).
Attention has been drawn towards the impugned F.I.R. which has been lodged on 16.04.2022 for the alleged incident dated 08.04.2022 without explaining an inordinate delay of eight days in lodging the impugned F.I.R.. The present applicant is a sole accused. The prosecutrix/ informant is a middle age lady of 50 years, however, her radiological age has been determined as 40 years. The prosecutrix/ informant is a married lady having three children. Initially, the F.I.R. was lodged under Sections 354, 323, 504 & 506 I.P.C. but during investigation Section 376 I.P.C. has been added. While recording her statement under Section 161 Cr.P.C. the prosecutrix/ informant has not levelled any allegations against the present applicant regarding rape, however, in her statement recorded under Section 164 Cr.P.C. such allegations have been levelled. No medical examination was conducted after the alleged incident. The applicant is having no previous criminal history of any kind whatsoever. The charge-sheet has been filed. He undertakes that if the present applicant is released on bail he shall not misuse the liberty of bail and shall abide by all terms and conditions of the bail order and shall co-operate in the trial proceedings properly.
Per contra, learned Additional Government Advocate has opposed the prayer for bail of the present applicant and has submitted that since the present applicant is a sole accused and has committed offence as alleged in the prosecution story, therefore, he is not entitled for bail.
Therefore, without entering into merits of the issue, considering the arguments of learned counsel for the parties; the contents and allegations of the F.I.R.; the fact that there is no explanation of inordinate delay of eight days in lodging the F.I.R.; the prosecutrix/ informant is a middle age married lady of 40 years; no medical examination was conducted after the alleged incident; there is apparent variations in her statement recorded under Sections 161 & 164 Cr.P.C.; the charge-sheet has been filed and the present applicant is having no previous criminal history of any kind whatsoever and the undertaking of the present applicant that he shall not misuse the liberty of bail and shall co-operate in the trial proceedings properly and shall abide by all terms and conditions of bail order, I am of the considered view that the present applicant may be released on bail.
Let the present applicant (Mahendra) be released on bail in the aforesaid case crime number on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(i) 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. 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 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.
(iii) 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, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) 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. 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 him in accordance with law.
(v) The applicant shall not leave the country without prior permission of the court and shall surrender the pass-port before the court concerned.
Order Date :- 28.2.2023 [Rajesh Singh Chauhan,J.] Suresh/