Allahabad High Court
Shashi Kapoor vs State Of U.P. on 18 November, 2020
Author: Shamim Ahmed
Bench: Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 93 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38687 of 2020 Applicant :- Shashi Kapoor Opposite Party :- State of U.P. Counsel for Applicant :- Devendra Vikram Singh Counsel for Opposite Party :- G.A. Hon'ble Shamim Ahmed,J.
Heard Sri Devendra Vikram Singh, learned counsel for the applicant, learned A.G.A for the State and gone through the record.
This bail application has been moved on behalf of accused-applicant- Shashi Kapoor, who is involved in Case Crime no.1162 of 2020, under Sections 3/5/6/7 of Immoral Traffic (Prevention) Act, 1956, P.S. Shahpur, District Gorakhpur.
According to the prosecution case on 29.8.2020 the Sub Inspector accompanying the other police personnel were on patrolling duty for maintaining law and order then they got information through informer that near Rail Vihar Krishna Restaurant some men and women were present in the room and they were involved in Immoral traffic business. On the said information with regard to the said incident the patrolling party informed the Circle Officer, who came there and on his direction search was made of alleged room in which the Durgesh Kumar, Dileep and one woman, who on asking told her name Poonam and further told that the applicant having a private quarter and called her in his house and called the people to do the business of Immoral Traffic and earn money through it, which is the business for livelihood. Thereafter the present F.I.R has been lodged against the applicant and others.
Learned counsel for the applicant contended that in the alleged raid and search, due procedure under the Immoral Traffic (Prevention) Act and the Code of Criminal Procedure has not been adopted; that the Circle Officer was not the competent special police officer to conduct raid and arrest; that nothing incriminating has been recovered from the possession of applicants; that the applicants are not involved in immoral trafficking in Rail Vihar Restaurant in the jurisdiction of police station Shahpur; that the proceedings were drawn in order to defame the applicant and harm his reputation; that no offence was committed by the applicant.
Learned counsel for the applicant further submits that there is no independent witnesses to support the prosecution case but the police has falsely implicated the applicant in the aforesaid case neither any complaint was filed by any person of the area nor any F.I.R. was lodged by any person residing in the neighborhood, under the aforesaid Act against the applicant. He further submits that the prosecution story is totally false and fabricated; that the applicant is innocent and he has been falsely implicated in the present case; that the correct fact is that on the date of incident on 29.8.2020 the applicant had gone to meet one person in the Medical College, Gorakhpur and after returning from that place at 8-30 P.M. the police illegally stopped him and started abusing him and demanded illegal money but when the applicant refused to give the illegal money then the police has falsely implicated him in the aforesaid case; that no test identification parade was conducted and there is no evidence of identification. However with oblique motive and dishonest intention falsely roped the innocent applicant in the case due to previous enmity with the police. He further submits that the applicant has not committed the offence in question, the applicant is a law abiding citizen and there is no criminal history against him.
There is nothing on record to show that applicant has undergone requisite test and he has been examined for the presence of any sexually transmitted disease as required under section 15(5A) of the ITP Act. According to the provisions of ITP Act and also observations made by Hon'ble Apex Court from time to time, before enlarging the applicant on bail, it is necessary to ascertain that he or she has been duly examined for the presence of sexually transmitted disease as per provisions of section 15(5A) of ITP Act and the accused person must be rehabilitated so that the possibility of his being involved in such or similar offences under ITP Act may be ruled out. The release of applicant may be considered only after the required examination under section 15(5A) of ITP Act on finding that there is no presence of any sexually transmitted disease.
Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that the accused is not having any criminal history and he is in jail since 30.8.2020 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.
Learned A.G.A. opposed the prayer for bail stating that this type of incident will send a wrong message in the society, therefore, the applicant is not entitled for bail.
After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also the absence of any convincing material to indicate the possibility of tampering with the evidence and the law laid down by the Hon'ble Apex Court in the case of Dataram Singh vs. State of UP and another, (2018) 3 SCC 22, this Court is of the view that the applicant may be enlarged on bail.
The prayer for bail is granted. The application is allowed.
Let the applicant Shashi Kapoor involved in Case Crime No.1162 of 2020, under Sections 3/5/6/7 of Immoral Traffic (Prevention) Act, 1956 P.S. Shahpur, District Gorakhpur, on the following conditions :-
(1) The applicant will not make any attempt to tamper with the prosecution evidence in any manner whatsoever.
(2) The applicant will personally appear on each and every date fixed in the court below and his personal presence shall not be exempted unless the court itself deems it fit to do so in the interest of justice.
(3) The applicant shall cooperate in the trial sincerely without seeking any adjournment.
(4) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
(5)The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad or certified copy issued from the Registry of the High Court, Allahabad.
(6) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing It may be observed that in the event of any breach of the aforesaid conditions, the court below shall be at liberty to proceed for the cancellation of applicant's bail.
It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.
Order Date :- 18.11.2020 mt