Allahabad High Court
Balram vs State Of U.P. And 3 Others on 19 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. - 4012 of 2023 Applicant :- Balram Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Bhriguram Ji,Sandip Kumar,Shashi Shankar Shukla,Shashi Shekhar Maurya Counsel for Opposite Party :- G.A. Hon'ble Saurabh Shyam Shamshery,J.
According to learned A.G.A., notice of this bail application has been served upon informant/victim on 27.01.2023, however, no one has entered appearance on his/her behalf.
Applicant- Balram has approached this Court for bail in Case Crime No. 174 of 2022 under Sections 363, 366, 376-A I.P.C. and 3/4 of POCSO Act, Police Station- Bar, District- Lalitpur.
In the present case, complainant (father of a minor girl) lodged an F.I.R. against named accused (applicant) that his daughter has not returned when she left for examination on 12.10.2022 and it was alleged that applicant has enticed her and kidnapped her from his lawful guardianship. The girl was returned after five days and submitted an application before Incharge Police Station that she went alone as she was unhappy with his father, mother as they have scolded her and she after few days returned.
Sri Shashi Shekhar Maurya, learned counsel for applicant vehemently argues that victim in her statement under Section 161 Cr.P.C. has narrated same version that she being unhappy with her parents, therefore, she left the house on her own will and remained at one or other place for few days and thereafter she returned; she even has not named the applicant in her statement; victim in her statement under Section 164 Cr.P.C. has narrated that she went alone on her own will, however, she also stated that earlier she has made physical relationship with applicant as husband and wife; he further submits that only on the basis of such statement, no offence under Sections 363, 366 and even Section 376 I.P.C. are made out, therefore, applicant, who is in jail since 28.10.2022 may be released on bail during trial.
Sri Markandey Singh, learned Brief Holder for State submits that since it is a case of victim that earlier she was in a physical relationship with applicant and since she is a minor girl, therefore, her consent is immaterial; learned counsel also referred statement made by victim before doctor that she went along with applicant and he had made physical relationship with victim as husband and wife as well as that applicant is well acquainted with victim, therefore, in case applicant gets bail, it is most likelihood that he will influence the victim; therefore, applicant may not be granted bail.
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, on the basis of educational document, victim is a minor girl aged about 17 years. On the basis of her statements recorded under Sections 161 and 164 Cr.P.C., the allegation that on 12.10.2022, applicant has enticed her and kidnapped from a lawful guardianship does not appear to be supported by any cogent evidence, however, statement of victim further states that she was earlier in physical relationship with applicant as husband and wife, however, there is merit in argument of learned counsel for applicant that this was not case of prosecution as well as that only on the basis of said statement, prima facie offence of rape may not be made out at this stage.
Considering the above submissions as well as taking note of statement of victim recorded under Sections 161 and 164 Cr.P.C., though the applicant has made out a case for bail at this stage, however, in order to remove any apprehension that he may influence the victim after getting bail, it is directed that applicant will not enter into boundaries of District Lalitpur for a period of three months from today, except for present case or with prior permission of Trial Court. Meanwhile, Trial Court shall take all endeavour to record statement of victim.
Let the applicant- Balram be released on bail in the aforesaid case crime number 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment or exemption from appearance on the date fixed in trial. 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 will not misuse the liberty of bail in any manner whatsoever. 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 Trial Court may make all possible efforts/endeavour and try to conclude the trial expeditiously, preferably within a period of six months after release of applicant, if there is no other legal impediment.
(v) Applicant has to appear on each and every date before learned trial Court and any application for exemption of his appearance on vague ground could be a ground for cancellation of bail by learned trial Court immediately.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
The bail application is allowed.
It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.
Order Date :- 19.4.2023 Nirmal Sinha