Allahabad High Court
Abdul Rahman vs State Of U.P. on 11 May, 2022
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14567 of 2022 Applicant :- Abdul Rahman Opposite Party :- State of U.P. Counsel for Applicant :- Abhishek Singh,Akshaivar Singh Counsel for Opposite Party :- G.A. Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Shri Abhishek Singh, learned counsel for applicant and Shri K.P. Pathak, learned A.G.A for State.
2. The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No. 181 of 2021 under Sections 376, 323, 313, 506 I.P.C., police station Mahila Thana, District Saharanpur after rejection of his Bail Application, vide order dated 25.2.2022 passed by In-charge Session Judge, Saharanpur.
3. In the present case, the victim herself lodged the F.I.R. on 12.12.2021 under Sections 376, 323, 313 506 I.P.C. against 15 named accused persons alleging very serious allegation of repeated rape amounting to intimidation by male accused persons and also alleged causing miscarriage without her consent on the family members of the accused persons including female members.
4. Learned counsel for applicant submits that after investigation charge-sheet was filed only against three accused persons including the applicant. The charge-sheet was submitted against the applicant for the offence under Sections 376, 323, 506 I.P.C. whereas against co-accused Rais and Smt. Ayesha for the offence under Sections 323, 506 I.P.C. However, remaining 12 named accused persons were exonerated. He submits that in the F.I.R., the victim/informant has narrated the occurrence being started about six years ago and continued till the F.I.R. was lodged. However, after investigation all the allegations were found to be false. Counsel for the applicant has referred para-11 of the bail application to raise allegations in regard to the informant's character and that F.I.R. was a counter blast as applicant refused to marry her.
5. Shri K.P. Pathak, learned A.G.A. for State opposed the above submission of counsel for the applicant. He submits that the informant/victim has supported the prosecution case in her statement recorded under Sections 161 and 164 Cr.P.C., however, he has not been able to contradict that out of 15 named accused persons, charge-sheet was filed only against three persons out of which one is female.
LAW ON BAIL
6. A. "The basic rule may perhaps be tersely put as bail, not jail "(State Of Rajasthan, Jaipur vs Balchand @ Baliay : (1977 AIR 2447, 1978 SCR (1) 535). Power to grant bail under Section 439 of CrPC, is of wide amplitude. The Court is bestowed with considerable but not unfettered discretion, which calls for exercise in a judicious manner and not as a matter of course and not in whimsical manner (see Ram Govind Upadhyay Vs Sudarshan Singh :(2002)3 SCC 598) Neeru Yadav Vs State of U.P.:(2016)15 SCC 422).
B."The considerations in granting bail are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out."[Gurcharan Singh v. State (Delhi Administration), (1978) 1 SCC 118)]. "There is no strait jacket formula which can ever be prescribed as to what the relevant factors could be. However, certain important factors that are always considered, interalia, relate to prima facie involvement of the accused, nature and gravity of the charge, severity of the punishment, and the character, position and standing of the accused" [State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21].
C."....It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge."(Prahlad Singh Bhati vs. NCT of Delhi and Ors:( 2001) 4 SCC 280).
D."....It is a fundamental premise of open justice, to which our judicial system is committed, that factors which have weighed in the mind of the Judge in the rejection or the grant of bail are recorded in the order passed. Open justice is premised on the notion that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The duty of Judges to give reasoned decisions lies at the heart of this commitment...."(Mahipal v. Rajesh Kumar, (2020) 2 SCC 118) also (Ms. Y versus State of Rajasthan and Anr :2022 SCC OnLineSC 458).
E."....There cannot be elaborate details recorded to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal while passing an order on an application for grant of bail. However, the Court deciding a bail application cannot completely divorce its decision from material aspects of the case such as the allegations made against the accused; severity of the punishment if the allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of the witnesses being influenced by the accused; tampering of the evidence; the frivolity in the case of the prosecution; criminal antecedents of the accused; and a prima facie satisfaction of the Court in support of the charge against the accused."(Manoj Kumar Khokhar (2022)3 SCC501).
7. From the above, referred submissions and the material on record, it appears that it is a case where the F.I.R. was lodged belatedly about after six years of the incident. Though very serious allegations of repeated rape and of causing miscarriage along with causing rape amounting to intimidation were alleged on all 15 named accused persons but after investigation, the said charges were found to be true only against the applicant and two other accused persons. The explanation given in the F.I.R. for the said delay prima facie does not appear to be satisfactory. Though the victim/informant was a minor girl when the alleged occurrence was started, i.e., six years ago, however, though she became major but still she did not lodge any F.I.R. against any persons. Prima facie, no evidence with regard to the allegation of causing miscarriage against her will was collected during investigation. Accordingly, on the basis of above discussion, a case for bail is made out.
8. Let applicant - Abdul Rahman 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 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 complainant in any manner whatsoever.
ii) The applicant will abide the orders of Court, will attend the Court on every date and will not delay the disposal of trial in any manner whatsoever.
iii) 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.
iv) 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.
v) The applicant shall remain present, in person, before 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 Trial Court absence of applicant is deliberate or without sufficient cause, then it shall be open for Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law and Trial Court may proceed against him under Section 229-A IPC.
9. 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.
10. The bail application is allowed.
11. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.
12. It is expected from the trial court that trial of this case will be concluded expeditiously and while granting any adjournment, trial court will take note of the provisions of Section 309 Cr.P.C.
Order Date :- 11.5.2022 Shiraz