Allahabad High Court
Sanjeev Chaudhary vs State Of U.P. And 3 Others on 18 August, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:166672 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33731 of 2023 Applicant :- Sanjeev Chaudhary Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Awadhesh Kumar Malviya Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Heard Mr. A.K. Malviya, Advocate, the learned counsel for applicant and the learned A.G.A. for State.
Perused the record.
This application for bail has been filed by applicant Sanjeev Chaudhary seeking his enlargement on bail in Case Crime No. 213 of 2023, under Sections 292, 376, 419, 420 IPC Sections 67, 67A I.T. Act and Sections 3/4 (2) of POCSO Act, P.S. Kotwali, District Ghazipur, during the pendency of trial.
At the very outset, the learned A.G.A. submits that notice of present application for bail has been served upon first informant opposite party 4 on 2.8.2023. However, in spite of service of notice, no one has put in appearance on behalf of opposite party 4 to oppose this application.
Record shows that an F.I.R. dated 28.4.2023 was lodged by first informant Abhishek Patel (brother of the prosecutrix) and was registered as Case Crime No. 213 of 2023, under Sections 419, 420 IPC and Sections 67, 67A I.T. Act, P.S. Kotwali, District Ghazipur.
As per the prosecution story as unfolded in the F.I.R., it is alleged that the applicant loaded obscene photographs of the prosecutrix through face book I.D. Rohit Singh. On account of aforesaid act of applicant, the sister of the first informant felt humiliated.
After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr. P. C. The statement of the prosecutrix was recorded under Section 161 Cr. P. C., wherein the prosecutrix has supported the F.I.R. She has, however, stated that physical relations were maintained in between herself and the applicant firstly on consent and therefore by use of threat. Thereafter, prosecutrix was referred for her internal examination. However, the Doctor who examined the prosecutrix, did not find any injury on her body so as to denote commission of sexual assault. The medical report as well as the supplementary medico legal report of the prosecutrix have however, not been brought on record, the same has been taken note of from the case diary, vide parcha no. CD 6. Ultimately, the statement of the prosecutrix was recorded under Section 164 Cr. P. C., wherein the prosecutrix has clearly admitted that she is a willing and consenting party in forming physical relation with the applicant.
During the course of investigation, Investigating Officer also recorded the statements of other witnesses, who have supported the F.I.R. Ultimately, he submitted the charge sheet dated 21.6.2023, whereby applicant has been charge sheeted under Sections 292, 376, 419, 420 IPC Sections 67, 67A I.T. Act and Sections 3/4 (2) of POCSO Act.
Learned counsel for applicant contends that though applicant is a named as well as charge sheeted accused, yet he is liable to be enlarged on bail. Prosecutrix was aged about 16 years, 10 months and 24 days on the date of occurrence as per High School Certificate. As per the statement of prosecutrix recorded under Sections 161/164 Cr. P. C., she is a willing and consenting party. Attention of the Court was then invited to the statements of the prosecutrix recorded under Section 161 Cr. P. C. and on basis thereof it is urged that the occurrence giving rise to present application for bail occurred much before i.e. July 2022. However, the F.I.R. giving rise to the present criminal proceeding has been lodged on 28.4.2023. As such, there is delay in lodging the F.I.R. However, neither in the F.I.R. nor in the statement of the prosecutrix, the delay in lodging the F.I.R. has been sufficiently explained. Referring to the judgement of the Supreme Court in P. Rajagopal Vs. State of Tamil Nadu, AIR (2019) SC, 2866 (paragraph 8), he submits that since the delay in lodging the F.I.R. has not been sufficiently explained, therefore, the prosecution of the applicant itself cannot be maintained. Even otherwise, the police report in terms of Section 173 (2) Cr. P. C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, upto this stage, no such incriminating circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. Even otherwise, applicant is a man of clean antecedents inasmuch he has no criminal history to his credit except the present one. Applicant is in jail since 3.5.2023. As such, he has undergone more than 3 months of incarceration. On the above premise, it is urged that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. However, the learned A.G.A. could not dislodge the factual/legal submissions urged by the learned counsel for applicant with reference to the record at this stage.
Having heard the learned counsel for applicant, the learned A.G.A. for state, upon perusal of record, nature and gravity of offence, evidence, complicity of the accused, accusation made, coupled with the fact that as per the statement of the prosecutrix recorded under Section 164 Cr. P. C., she is a willing and consenting party, the unexplained delay in lodging the F.I.R., by virtue of judgement of Supreme Court in P. Rajagopal Vs. State of Tamil Nadu, (supra), prosecution of applicant itself cannot be maintained, the police report in terms of Section 173 (2) Cr. P. C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized but in spite of above, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of the applicant during the pendency of trial, the judgement of Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 Livelaw (S.C.) 373 (para 5), the clean antecedents of applicant, the period of incarceration undergone, but without making any comments on the merits of the case, the applicant has made out a case for bail.
Accordingly, the bail application is allowed.
Let the applicant Sanjeev Chaudhary involved in aforesaid case crime number, be released on bail 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 which are being imposed in the interest of justice :-
(i) 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.
(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 I.P.C..
(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., 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 I.P.C.
(iv) 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.
(v) The trial court may make all possible efforts/endeavour and try to conclude the trial within a period of one year after the release of the applicant.
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 and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 18.8.2023 HSM