Allahabad High Court
Raj Kumar Tiwari @ Vikki And 3 Others vs State Of U.P. And 3 Others on 6 September, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:175561 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35300 of 2023 Applicant :- Raj Kumar Tiwari @ Vikki And 3 Others Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Brajesh Kumar Chaturvedi,Ashok Kumar Upadhyay Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Heard Mr. A.K. Upadhyay, the learned counsel for applicants and the learned A.G.A. for State.
This application for bail has been filed applicants- Raj Kumar Tiwari, Mithilesh Kumar Tiwari, Visheshwar Tiwari and Pawan Kumar Tiwari, seeking their enlargement on bail in Case Crime No. 289 of 2015 under sections 354B, 376, 511, 149 IPC and 7/8 POCSO Act and 3(2)(v) S.C./S.T. Act, Police Station- Dokati, District Ballia during the pendency of trial.
At the very outset, learned A.G.A. submits that notice of present application for bail has been served upon first informant/opposite party-2 on 11.8.2023. However, inspite of service of notice no one appears on behalf of opposite party-2 to oppose this application.
Perused the record.
Record shows that in respect of an incident which is alleged to have occurred on 12.11.2015, a belated F.I.R. dated 19.12.2015 was lodged by first informant namely, Rajesh Pasi and was registered as Case Crime No. 289 of 2015 under sections 354-B, 376, 511, 149 IPC and 7/8 POCSO Act, and 3(2)(v) S.C./S.T. Act, Police Station- Dokati, District Ballia. In the aforesaid F.I.R. five persons namely, Kashi Tiwar, Rajkumar Tiwari, Mithilesh Kumar Tiwari, Visheshwar Tiwari, Pawan Kumar Tiwari have been nominated as named accused.
After lodging of aforesaid F.I.R. Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. During course of investigation, Investigating Officer examined first informant and other witnesses under section 161 Cr.P.C. On the basis of above and other material collected by him during course of investigation, he came to the conclusion that a false case has been lodged by first informant. Investigating Officer submitted a police report under section 173(2) Cr.P.C, dated 21.3.2016, whereby it was stated that as false F.I.R. has been lodged, accordingly, proceedings under section 182 Cr.P.C. be initiated against first informant.
After submission of aforesaid report, no protest petition was filed by applicant. However, irrespective of above, Court below rejected the police report and simultaneously took cognizance upon same and matter was proceeded as a State Case.
Learned counsel for applicants contends that though the applicants are named as well as charge sheeted accused but they are innocent. After investigation of concerned case crime number, the criminality alleged to have committed by present applicants was not found to be established. Accordingly, Police Report in terms of Section 173(2) i.e. final report was submitted in favour of applicants.
It is next contended that concerned Sessions Judge, proceeded with the matter after rejecting the police-report but simultaneously took cognizance in exercise of jurisdiction under section 190(1)(b) Cr.P.C. He, therefore submits that once the final report itself was rejected no cognizance could have been taken under section 190(1)(b) Cr.P.C. The proper course for concerned Magistrate was to take congnizance under section 190 (1)(a) Cr.P.C. and proceed with the matter.
It is further submitted that co-accused Kashinath Tiwari, has already been enlarged on bail by this Court vide order dated 16.2.2023, passed in CriminL Misc. Bail Application No. 58825 of 2022 (Kashinath Tiwari Vs. State of U.P. and 3 Others). Same is reproduced herein under:
"As per office report dated 24.1.2023 notice has been served upon the opposite party no.2 through his brother but no one appears on his behalf.
Heard learned counsel for the applicant and learned A.G.A.
The instant bail application has been filed on behalf of the applicant, Kashinath Tiwari, with a prayer to release him on bail in Case Crime No 289 of 2015, under Sections 354-B,376,511,149 IPC section 7/8 POCSO Act and section 3(2) (v) of S.C./S.T. Act Police Station Dokati, District- Ballia, during pendency of trial.
There is allegation against the applicant of making attempt to commit rape with common object and also offence of use of criminal force against women to disrobe her besides offence under section 7/8 POCSO Act and section 3(2)(v) of S.C./S.T. Act.Learned counsel for the applicant has submitted that there is prior enmity between the parties. The brother of the informant, Chhotak Pasi, was one of the co-accused in S.T. No. 12 of 2015, wherein applicant was informant.His trial is still pending before the Juvenile Court .Applicant has been implicated in this case because he was informant of the aforesaid case wherein his daughter, aged about 16 years, was subjected to offence of rape and illegal confinement by the brother of the informant.It is a case of false implication.Even in this case victim has assigned only the role of exhortation to the applicant and offence of rape has been assigned to the co-accused.Applicant is aged about 68 years. He is in jail since 21.11.2022 and has no criminal history.
Learned A.G.A. has opposed the bail prayer of the applicant but could not dispute the aforesaid facts.
Keeping in view the nature of the offence, evidence, complicity of the accused; submissions of the learned counsel for the parties noted above; finding force in the submissions made by the learned counsel for the applicant; keeping view the uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under-trial having fundamental right to speedy trial; larger mandate of the Article 21 of the Constitution of India; considering the dictum of Apex Court in the recent judgment dated 11.07.2022 of the Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021; considering 5-6 times overcrowding in jails over and above their capacity by the under trials and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed Let the applicant be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.
1. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.
2. The applicant shall cooperate in the trial sincerely without seeking any adjournment.
3. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
4. That the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
5. The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and 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 to ensure presence of the applicant.
6. The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. "
With reference to the recital contained in paragraph 4 of aforesaid judgment, the observations made by Court is also not attracted against applicants inasmsuch as upon investigation of concerned case crime number, the Police has already submitted final report in favour of applicants. It is further contended that some of the applicants have criminal history to their credit, which have been sufficiently explained in paragraph 5 of the affidavit filed in support of present application. Applicants are in jail since 24.7.2023. As such, they have undergone one month of incarceration. However, up to this stage, no such circumstance has emerged, necessitating the custodial arrest of applicants during the pendency of trial. On the basis of above, he contends that applicants are liable to be enlarged on bail. In case the applicants are enlarged on bail, they shall not missuse the liberty of bail and shall cooperate with the trial.
Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicants are named and charge-sheeted accused therefore they do not deserve any sympathy by this court. He submits that concerned Sessions Judge, upon perusal of record has come to the conclusion that criminality committed by applicants is prima facie established. However, the learned A.G.A. could not dislodge the factual and 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 AGA for state, upon perusal of record, evidence, nature and gravity of offence, acquisition made, complicity of applicant, coupled with the fact that co-accused Kashinath Tiwari has already been enlarged on bail, though in paragraph 4 of the bail order pertaining to co-accused, this Court has observed that allegations of rape has been assigned to co-accused, after However, the said observation has become meaning less inasmsuch as Police upon investigation of concerned case crime number has submitted final report in favour of applicants, the concerned Sessions Judge, has proceeded with the matter as a State case, rejecting the final report, which is manifestly illegal, therefore, trial of applicant cannot be sustained, but without making any comment on the merits of the case, applicant has made out a case for bail.
Accordingly, the bail application is Allowed.
Let the applicants- Raj Kumar Tiwari, Mithilesh Kumar Tiwari, Visheshwar Tiwari and Pawan Kumar Tiwari 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 SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(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 THE HIM/HER 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/her 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 :- 6.9.2023 Arshad