Allahabad High Court
Shekhar Sharma vs State Of U.P.And 3 Others on 6 May, 2022
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 71 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1677 of 2022 Applicant :- Shekhar Sharma Opposite Party :- State Of U.P.And 3 Others Counsel for Applicant :- Dharmesh Kumar Shukla,Devesh Kumar Shukla Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
Heard Sri Devesh Kumar Shukla, learned counsel for the applicant and Sri Gyan Prakash Singh, learned counsel for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Shekhar Sharma, seeking enlargement on bail during trial in connection with Case Crime No. 278 of 2015, under Sections 363, 366, 376/511 I.P.C. and Section 6 POCSO Act, registered at Police Station Pahasu, District Bulandshahr.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that after lodging of the First Information Report, the prosecutrix and the applicant filed a Crl. Misc. Writ Petition No. 27265 of 2015 (Nisha Tiwari and another Vs. State of U.P. and 2 others) in which the prosecutrix and the applicant had appeared before the Division Bench of this Court and an order dated 18.11.2015 was passed directing that they shall not be arrested. The said order is quoted herein-below:
"Heard learned counsel for the petitioners and learned A.G.A. for the respondent nos. 1 and 2.
Issue notice to the respondent no.3 returnable within six weeks.
All the respondents may file counter affidavit within six weeks.
List on the date mentioned in the notice.
Ms. Nisha Tiwari (petitioner no.1 ) & Yatendra Kumar @ Shekhar Sharma (petitioner no.2) are present before the Court. They have been duly identified by their counsel Sri Devesh Kumar Shukla. Ms. Nisha Tiwari, who is major has stated before the Court that she is living with Yatendra Kumar @ Shekhar Sharma of her own free will without any coercion. She has, further, stated that she has come to this Court along with Yatendra Kumar @ Shekhar Sharma and that she would continue to live with him. In view of the above the petitioners are entitled to an interim protection.
Accordingly, till further orders of this Court or till submission of the police report under Section 173(2) Cr.P.C whichever is earlier, the petitioners shall not be arrested in Case Crime No.278 of 2015 under Sections 363, 366 IPC, P.S. Pahasu, District Bulandshahr, provided that they shall continue to extend co-operation in the investigation."
It is further argued that subsequently charge sheet in the matter was submitted after which the proceedings of the trial court was challenged by the applicant by filing a writ being Matter Under Article 227 No. 7993 of 2016 (Shekhar Sharma Vs. State of U.P. and another) in which an order dated 04.10.2016 was passed that till the next date of listing, no coercive action shall be taken against the petitioner. The said order is quoted herein-below:-
"Heard learned counsel for the petitioner and learned Standing Counsel for the State.
The present petition has been filed for setting aside the order dated 4.7.2016 passed by the learned Additional Sessions Judge, F.T.C. No.2, Bulandshahar and for setting aside the Special Case No.1146 of 2016 arising out of Case Crime No.278 of 2015, under Sections 363, 366, 376 I.P.C. and Section 6 POCSO Act, Police Station Pahasu, District Bulandshahar.
Learned counsel further submits that as per decision of Hon'ble Apex Court in matter of Devendra Kishan Lal Dagalia Vs. Dwarkesh Diamonds Private Limited and others reported in 2014 (2) SCC 246, summoning order can be challenged in the 482 Cr.P.C. petition or under Article 227 of the Constitution of India.
It is contended by learned counsel for the petitioner that the petitioner had gone away with the petitioner out of her own free will. It is further argued that the petitioner as well as the victim have appeared before another Bench of this Court in Criminal Misc. Writ Petition No.27265 of 2015, copy of which has been annexed as annexure-3 to the petition, whereby the writ Court had taken note of the fact that petitioner as well as victim were present before the Court. It is next contended that the victim had gone with the petitioner out of her own free will as is evident from her statement recorded under Section 161 Cr.P.C., but thereafter, she gave a different statement recorded under Section 164 Cr.P.C.. It is thus, contended that the petitioner has been falsely implicated in the present case. It is further contended that father and brother of the petitioner have been granted interim protection by this Court vide order dated 19.9.2016 in Matters Under Article 227 No.7145 of 2016, copy of which has been annexed as annexure-10 to the petition.
Issue notice to the respondent no.2 returnable within a period of four weeks. Steps be taken within a week.
Learned A.G.A. prays for and is granted four weeks' time for filing counter affidavit. Respondent no.2 may also file counter affidavit within the same period. As prayed by learned counsel for the petitioner, two weeks, thereafter, is granted for filing rejoinder affidavit.
List immediately after expiry of the aforesaid period before appropriate Court along Matters Under Article 227 No.7145 of 2016.
Till the next date of listing, no coercive action shall be taken against the petitioner in the aforesaid case."
It is further argued that subsequently the interim order was extended vide order dated 20.02.2020 passed in the said petition. The said order is quoted herein-below:-
"Crl. Misc. (Stay Extension) Application No.4 of 2020 As per office report dated 29.11.2016, notice has been issued upon the respondent no.2 by registered post fixing 3.1.2017, but, neither counter affidavit has been filed by opposite party no.2 nor any counsel has put in appearance on his behalf and further State has also not filed counter affidavit till date.
Office is directed to submit a fresh report with regard to service of notice upon the respondent no.2.
Stay extension application is allowed.
List this case on 20.3.2020 alongwith record of Matter Under Article 227 No.7145 of 2016 before appropriate Bench.
Till then, interim order shall remain operative."
It is argued that subsequently a notice was issued by the trial court on 02.08.2021 to the applicant in terms of the order of the Apex Court in the case of Asian Resurfacing of Road Agency Pvt. Ltd. and another Vs. Central Bureau of Investigation : 2018 AIR (SC) 2039 and the applicant could not get the interim order extended and as such he was arrested on 09.12.2021 and is in jail since then.
It is further argued that the prosecutrix is a major. She in her statement recorded under Section 161 Cr.P.C. stated that she went with the applicant out of her own sweet will. Subsequently, in her statement recorded under Section 164 Cr.P.C. has stated that on the pressure of her family members she was forcibly taken to Allahabad and was forced to make signature. It is argued that the prosecutrix refused her medical examination when she was produced before the doctor. It is argued that before the Division Bench of this Court, the prosecutrix has stated that she is living with the applicant out of her own will without any force. It is argued that the present case is a case of consent. He further argued that the applicant has no criminal history as stated in para 19 of the affidavit and is in jail since 09.12.2021.
Per contra, learned counsel for the State opposed the prayer for bail and argued that the applicant is named in the First Information Report and there are allegations against him.
After having heard learned counsels for the parties and perusing the records, it is evident that the prosecutrix appeared before the Division Bench of this Court and has stated that she went with the applicant out of her own sweet will and was living with the applicant without any force. The proceedings of the trial court after filing of charge sheet were challenged before this Court in which a protective order was passed in favour of the applicant by this Court, the interim order was extended.
Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
Let the applicant Shekhar Sharma, 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 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 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 him in accordance with law and the trial court may proceed against him under Section 229-A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
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.
Order Date :- 6.5.2022 M. ARIF (Samit Gopal, J.)