Allahabad High Court
Jabir vs State Of U.P. on 17 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. - 999 of 2023 Applicant :- Jabir Opposite Party :- State of U.P. Counsel for Applicant :- Pavan Kumar,Zia Naz Zaidi Counsel for Opposite Party :- G.A. Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Ms. Ziya Naz Zaidi, learned counsel for applicant and Sri Chandan Agarwal, learned AGA for State.
2. Applicant-Jabir has approached this Court by way of filing present bail application seeking enlargement on bail in Case Crime No. 182 of 2022, under Sections 376, 452, 324, 504, 506 IPC, Police Station Shivala Kalan, District Bijnor, after rejection of his bail application vide order dated 21.12.2022 passed by Sessions Judge, Bijnor.
3. In the present case victim herself has lodged FIR, though after five days, that applicant entered inside her house and raped her.
4. Learned counsel for applicant submits that victim has not mentioned about allegation of rape in her statement recorded under Section 161 Cr.P.C. except that there was an attempt of rape, however, in the statement recorded under Section 164 Cr.P.C. she has specifically made allegation of rape against applicant. Learned counsel submits that during trial victim though stated in her examination-in-chief that she was raped, however, by an unknown persons and she denied involvement of applicant. Learned counsel for applicant submits that on the basis of such evidence possibility of conviction is very less. Learned counsel also submits that applicant has no criminal history and he is languishing in jail since 14.11.2022 and in case, he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
5. Learned AGA appearing for State has opposed the prayer for bail, however, he is not able to dispute the statement of victim annexed alongwith this application.
6. 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)
7. In the present case, victim herself has lodged FIR and applicant was named in FIR. Version of FIR is supported in the statement of victim recorded under Section 164 Cr.P.C. It is true that victim has not supported case of prosecution in trial that applicant was the person who committed rape though there is no bar that on the basis of such evidence as well as taking note of medical evidence conviction may not be made out. However, considering status of evidence at this stage and that statement of victim has already been recorded in trial and there is no possibility that if bail is granted to applicant, he may influence victim, the applicant, who is in jail since 14.11.2022, has made out a case of bail.
8. However, applicant is directed to remain present on each and every date as and when required by Trial Court during trial and in case any application for exemption on vague ground is filed, the same shall be a ground for Trial Court to cancel bail immediately.
9. Let the applicant-Jabir 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.
10. 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.
11. The bail application is allowed.
12. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.
13. However, considering the stand of victim, Trial Court is directed to initiate summary proceedings against victim for giving false evidence as provided under Section 344 Cr.P.C. and in this regard it would be appropriate to quote the relevant part of a judgment passed by Supreme Court in Hemudan Nanbha Gadhvi vs. State of Gujarat, (2019) 17 SCC 523, as under:
"10. A criminal trial is but a quest for truth. The nature of inquiry and evidence required will depend on the facts of each case. The presumption of innocence will have to be balanced with the rights of the victim, and above all the societal interest for preservation of the Rule of law. Neither the Accused nor the victim can be permitted to subvert a criminal trial by stating falsehood and resort to contrivances, so as to make it the theatre of the absurd. Dispensation of justice in a criminal trial is a serious matter and cannot be allowed to become a mockery by simply allowing prime prosecution witnesses to turn hostile as a ground for acquittal, as observed in Zahira Habibullah Sheikh v. State of Gujarat, (2006) 3 SCC 374 and Mahila Vinod Kumari v. State of Madhya Pradesh, (2008) 8 SCC 34. If the medical evidence had not confirmed sexual assault on the prosecutrix, the T.I.P. and identification therein were doubtful, corroborative evidence was not available, entirely different considerations may have arisen.
11. It would indeed be a travesty of justice in the peculiar facts of the present case if the Appellant were to be acquitted merely because the prosecutrix turned hostile and failed to identify the Appellant in the dock, in view of the other overwhelming evidence available. In Iqbal v. State of U.P., 2015 (6) SCC 623, it was observed as follows:
"15. Evidence of identification of the miscreants in the test identification parade is not a substantive evidence. Conviction cannot be based solely on the identity of the dacoits by the witnesses in the test identification parade. The prosecution has to adduce substantive evidence by establishing incriminating evidence connecting the Accused with the crime, like recovery of articles which are the subject matter of dacoity and the alleged weapons used in the commission of the offence."
14. It is also directed that compensation, if any, granted to victim shall be recovered.
15. A copy of this order be sent to Trial Court for compliance.
Order Date :- 17.4.2023 AK