Allahabad High Court
Vivek Kumar Yadav vs State Of U.P. on 19 October, 2019
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 67 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35936 of 2019 Applicant :- Vivek Kumar Yadav Opposite Party :- State Of U.P. Counsel for Applicant :- Rajiv Lochan Shukla,Kailash Nath Counsel for Opposite Party :- G.A.,Rakesh Kumar Singh,Anil Pratap Singh. Hon'ble Rahul Chaturvedi,J.
Heard Sri Rajiv Lochan Shukla, learned counsel for the applicant, Sri Rakesh Kumar Singh and Sri Anil Pratap Singh, learned counsels for the complainant as well as learned A.G.A.
By means of this application, the applicant who is involved in case crime no.725 of 2019, under Section 376D, 342, 323 and 506 IPC, Police Station-Cantt., District-Varanasi is seeking enlargement on bail during the trial.
This is a strange case whereby on the earlier occasion, mother of the prosecutrix has trapped the applicant and when a compromise/marriage was solemnized with her, thereafter, the applicant tried to dissolve the alleged marriage with the mother of the prosecutrix by taking legal recourse, then the prosecutrix's mother used her daughter(prosecutrix) to twist the arm of the applicant for the second time by levelling a wild allegation of sexual assault upon her.
The prosecutrix "Miss G" has lodged the FIR on 30.05.2019 for the alleged incident said to have been taken place on 29.05.2019 against unknown persons that while coming back from JHV Mall on her scooty, she was intercepted and snatched away in a safari car and later on, it was revealed that said safari car was occupied by none other than the applicant. She alleges that applicant has brutally ravished her and thereafter left her on the same place where her scooty was lying.
Learned counsel for the applicant submits that the allegation if taken to be true on the face value, without admitting that the inter se relationship between the applicant and the prosecutrix is of step father-daughter who has allegedly raped her. It is further contended that the applicant presently is pursuing his Ph.D. course in Bio-mechanical Engineering from I.I.T., BHU, where he has sought admission in the year 2013. Being day scholar, he came across with the mother of 'Miss G' who runs student hostel. The applicant was offered one room on monthly rent of Rs.3,000/-. Unfortunately, mother of 'Miss G' became widow in the year 2014. The applicant somehow or other developed certain amount of affinity towards the mother of 'Miss G' and the relationship got deepen and crossed all the barriers of decency, resultantly on the earlier occasion, mother of the victim(Miss G) lodged the FIR against the applicant as Case Crime No.1041 of 2018 under Sections 376, 493, 504, 506, 323, 120-B IPC on 05.10.2018 levelling the allegation of sexual assault upon her. However, in that case, applicant was bailed out by co-ordinate Bench of this Court on 04.01.2019 and that case was ended into compromise between the parties with the condition that both of them would marry with each other within 15 days from the date of compromise i.e. 08.05.2018. This compromise was signed by both the parties and eventually on 22.05.2018, applicant got married with the mother of 'Miss G'. The marriage Registration Certificate is annexed as Annexure-2 to the application. Sensing that the applicant has been trapped in the web laid down by mother of 'Miss G' and as such, he moved an application before the Family Court, Azamgarh for annulling the marriage under Section 11 of the Hindu Marriage Act.
The quench of revenge was not satisfied and this time, mother of 'Miss G' used her daughter to twist the arm of the applicant who was released on bail on 04.01.2019. The next contention is that the medico legal report completely blasts the prosecution case. The hymen of 'Miss G' was old torn and healed and there is material discrepancy/sift in the contents of the FIR and 164 Cr.P.C. In the FIR, allegation of ravishing her is levelled only against the applicant whereas in 164 Cr.P.C. number has swelled from singular to plural without any justification by adding the name of one Abhishek Dubey just to give more serious look to the entire episode. The applicant is languishing in jail since 24.06.2019 by the courtesy of mother of the victim.
Per contra, learned counsel for the complainant has tried to arouse the emotions of the Court that on the earlier, mother was target of animal instinct of the applicant and now, her daughter. This is a most distasteful allegation and, therefore, applicant is not fit person whereby the Court should bestow its mercy.
I have heard learned counsel for the applicant, learned counsel for the complainant as well as learned A.G.A. at length. After being widow and the said compromise deed, it is clear that mother of the victim was in relationship with the applicant for a considerable period and then, both of them have decided to marry just to control the situation. Somehow, this relationship could not last long and applicant has moved application for divorce at Azamgarh. However, on 05.10.2018, informant's mother has lodged the FIR against the applicant in which after great deal and effort, applicant has been granted bail on 04.01.2019 and since, he has been enlarged on bail, second inning of prosecution was initiated by the informant on 30.05.2019. This is nothing but an arm twisting and revengeful act by the mother of the informant.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties and without expressing any opinion on merits of the case, I am of the view that the applicant has made out a case for bail.
Let the applicant-Vivek Kumar Yadav, involved in case crime no.725 of 2019, under Section 376D, 342, 323 and 506 IPC, Police Station-Cantt., District-Varanasi be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) THE APPLICANT WOULD FULLY COOPERATE IN THE CONCLUSION OF TRIAL WITHIN ONE YEAR AND ANY TEMPERING OR WILLING TACTICS ON THE PART OF THE APPLICANT TO DELAY THE TRIAL WOULD WARRANT THE AUTOMATIC CANCELLATION OF BAIL.
(ii) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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.
(iii) 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 IPC.
(iv) 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., MAY BE ISSUED AND IF 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 IPC.
(v) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) 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.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court.
Order Date :- 19.10.2019 Sumit S