Allahabad High Court
Netrapal Singh vs State Of U.P. And 3 Others on 20 April, 2023
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 76 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6991 of 2023 Applicant :- Netrapal Singh Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Jitendra Singh Counsel for Opposite Party :- G.A.,Manish Kumar Dwivedi Hon'ble Saurabh Shyam Shamshery,J.
Heard Sri Jitendra Singh, learned counsel for applicant, Sri Manish Kumar Dwivedi, learned counsel for informant and Sri Markandey Singh, Brief Holder for State.
Applicant has approached this Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. in Case Crime No.262 of 2022 under Sections 354-B, 342, 506, 376 I.P.C. and 3/4 POCSO Act, Police Station- Jawan, District - Aligarh after rejection of his Bail Application vide order dated 11.10.2022 passed by Special Judge(POCSO Act) Additional District and Sessions Judge, Aligarh.
Informant/complainant is a labour, lodged an F.I.R. against applicant(a quack doctor) that his minor daughter, aged about 10 years was suffering from fever, therefore, he along with his minor daughter and her younger brother went to doctor's clinic. Informant left both child at applicant's clinic and went to purchase certain items, however, when he came back, he found that his minor daughter was weeping. Informant/complainant thought that she was weeping due to injection, however, when they reached home, she narrated that applicant has outraged her modesty and pull out her clothes. Later on, when informant and his wife made a complaint to applicant, he threatened them by showing a country-made pistol.
Learned counsel for applicant further submits that applicant is not a doctor, therefore, there was no occasion that informant along with victim may visit to him, however, he has not disputed that victim is a minor girl, aged about 10 years.
Learned counsel further submits that victim in her statement recorded under Section 161 Cr.P.C. has only referred about alleged occurrence of outraging her modesty but has not mentioned the allegation of rape against applicant, however, she has improved her case in her statement recorded under Section 164 Cr.P.C. that applicant not only outraged her modesty by pulling down her clothes but also inserted his finger in her private part. No external injury was found during medical examination of victim.
Learned counsel further submits that it was a tutored statement only to make offence more grievous and it is a case of false implication as complainant side has assaulted applicant on the same date at 7.00 A.M. after which he was medically examined also but no prompt F.I.R. was lodged. Later on he had filed an application under Section 156 Cr.P.C. and now a direction has been passed to register as a criminal case.
The above submissions are opposed by learned A.G.A. that victim is a minor girl who has specifically stated that she was confined by applicant in a room and not only he pulled down her clothes but also touched her private part and she further specifically stated in her statement recorded under Section 164 Cr.P.C. that applicant had put his finger inside her private part, therefore, prima facie it is a case of rape of minor girl.
LAW ON BAIL - A SUMMARY (A) The basic rule may perhaps be tersely put as bail, not jail.
(B) Power to grant bail under Section 439 Cr.P.C., is of wide amplitude but not an unfettered discretion, which calls for exercise in a judicious manner and not as a matter of course or in whimsical manner.
(C) While passing an order on an application for grant of bail, there is no need to record elaborate details to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal. However, a Court cannot completely divorce its decision from material aspects of the case such as allegations made against accused; nature and gravity of accusation; having common object or intention; severity of punishment if allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of witnesses being influenced by accused; tampering of evidence; character, behaviour, means, position and standing of accused; likelihood of offence being repeated; the frivolity in the case of prosecution; criminal antecedents of accused and a prima facie satisfaction of Court in support of charge against accused. The Court may also take note of participation or part of an unlawful assembly as well as that circumstantial evidence not being a ground to grant bail, if the evidence/ material collected establishes prima facie a complete chain of events. Parity may not be an only ground but remains a relevant factor for consideration of application for bail.
(D) Over crowding of jail and gross delay in disposal of cases when undertrials are forced to remain in jail (not due to their fault) may give rise to possible situations that may justify invocation of Article 21 of Constitution, may also be considered along with other factors.
(See, State Of Rajasthan, Jaipur vs. Balchand @ Baliay (AIR 1977 SC 2447 : 1978 SCR (1) 535; Gurcharan Singh vs. State (Delhi Administration), (1978) 1 SCC 118); State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21; Prasanta Kumar Sarkar vs. Ashis Chatterjee and Anr (2010)14 SCC 496; Mahipal vs. Rajesh Kumar, (2020) 2 SCC 118; Ishwarji Mali vs. State of Gujarat and another, 2022 SCC OnLine SC 55; Manno Lal Jaiswal vs. The State of U.P. and others, 2022 SCC OnLine SC 89; Ashim vs. National Investigation Agency (2022) 1 SCC 695; Ms. Y vs. State of Rajasthan and Anr :2022 SCC OnLine SC 458; Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022)3 SCC 501; and, Deepak Yadav vs. State of U.P. and Anr. (2022)8 SCC 559) In the present case, there is no dispute that victim is aged about 10 years. There is a specific allegation against applicant that he is quack doctor which has been vaguely denied by applicant in bail application.
Victim has specifically stated in her statement recorded under Section 161 Cr.P.C. that applicant confined her inside the room and pull down her clothes and touched her private part as well as she specifically stated in her statement recorded under Section 164 Cr.P.C. that applicant had inserted his finger inside private part of victim, at this stage, statement of victim recorded under Section 164 Cr.P.C. has more evidently value. There is no material in support of submission that it was a tutored statement as well as there is merit in the argument of learned A.G.A. that at this stage, the complaint case filed by applicant would have not adverse impact on the prosecution case, therefore, applicant who is facing serious charge of committing rape of a minor girl has not made out a case of bail.
Accordingly bail application is rejected.
Order Date :- 20.4.2023 P. Pandey