Allahabad High Court
Ashish Patel vs State Of U.P. Thru. Prin. Secy. Home ... on 1 May, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 15 Case :- CRIMINAL APPEAL No. - 2076 of 2021 Appellant :- Ashish Patel Respondent :- State Of U.P. Thru. Prin. Secy. Home Lucknow Counsel for Appellant :- Sushil Kumar,Alok Singh Chauhan Counsel for Respondent :- G.A. Hon'ble Ajai Kumar Srivastava-I,J.
1. Heard Sri Alok Singh Chauhan, learned counsel for the appellant, Sri Anurag Verma, learned A.G.A. for the State and perused the entire record.
2. As per office report dated 20.03.2023, notice upon the opposite party no.2 has already been served. However, no one has appeared on behalf of opposite party no.2 to argue this appeal.
3 From the perusal of the record, it transpires that opposite party no.2, victim came to be mentioned in the array of parties in the manner which reveals her identity, which is not permissible in law as held by Hon'ble Supreme Court in the case of Nipun Saxena v. Union of India, passed in Writ Petition (Civil) No. 565 OF 2012. Section 228(A) I.P.C. also prohibits such disclosure of identity of the victim.
4. Learned counsel for the appellant seeks permission of this Court to get the same amended/deleted in a manner which does not disclose the identity of victim.
5. Accordingly, learned counsel for the appellant is permitted to make necessary amendment in the memo of parties during the course of the day.
6. This Criminal Appeal under Section 14-A (2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the order dated 26.10.2021 passed by the learned Special Judge, SC/ST Act, Pratapgarh in bail application No.2228 of 2021, arising out of Case Crime No.262 of 2021, under Sections 376, 506 I.P.C. and Sections 3(2)5 and 3(2)5A SC/ ST Act, Police Station Rani Ganj, District Pratapgarh, whereby the bail application of the appellant has been rejected.
7. Learned counsel for the appellant has submitted that the present innocent appellant has been falsely implicated in this case because of his prior acquaintance with the victim. Her further submission is that initially a false first information report came to be lodged against the present appellant, under Section 493, 506 I.P.C. and Sections 3(2)5 and 3(2)5A SC/ ST Act by the victim herself. However, upon conclusion of investigation, charge sheet came to be submitted against the present appellant under Sections 376, 506 I.P.C. and Sections 3(2)5 and 3(2)5A SC/ ST Act without collecting credible evidence, whatsoever, against him. His further submission is that the allegation of rape is false and has been levelled with a view to falsely implicate the present appellant. He has also submitted that there is a marked discrepancy in the content of first information report and the statements of victim recorded under Section 161 & 164 Cr.P.C. He has also submitted that the victim is major. The victim has refused to get herself medically examined. The present appellant and the victim/first informant knew each and they had consensual physical relationship also. However, subsequently a false first information report came to be lodged against the present appellant by the first informant/victim in order to exert undue pressure on the appellant to marry with the victim against his wish. He, thus, submits that no offence under Section 376 I.P.C. is made out against the present appellant.
8. Learned counsel for the appellant has also submitted that in case, the appellant is enlarged on bail, he shall not misuse the liberty of bail and he shall also fully cooperate with the trial court in getting the trial concluded expeditiously. He has further submitted that there is no possibility of the appellant to intimidate or pressurize the witnesses or any other persons acquainted with the facts of the present case. The accused/appellant is languishing in jail since 06.06.2021 who has no previous criminal history.
9. For the aforesaid reasons, learned counsel for the appellant submits that the instant criminal appeal deserves to be allowed. The impugned order dated 26.10.2021 deserves to be set aside and consequently the appellant deserves to be enlarged on bail during pendency of the trial.
10. Per contra, learned A.G.A. has vehemently opposed the prayer by submitting that the present appellant was named in the first information report who committed heinous offence of rape upon the victim on the false pretext of marriage. Therefore, the instant criminal appeal deserves to be dismissed. However, he could not dispute the other factual submission advanced by learned counsel for the appellant.
11. Having heard the learned counsel for the appellant, learned A.G.A. for the State and upon perusal of record, it transpires that initially a first information report came to be lodged against the present appellant, under Section 493, 506 I.P.C. and Sections 3(2)5 and 3(2)5A SC/ ST Act by the victim herself. Upon conclusion of investigation, charge sheet came to be submitted against the present appellant under Sections 376, 506 I.P.C. and Sections 3(2)5 and 3(2)5A SC/ ST Act. The victim is major, who has refused to get herself medically examined. The accused/appellant is languishing in jail since 06.06.2021 who has no previous criminal history.
12. Considering the facts and circumstance of the case, without expressing any opinion on the merits of the case, the Court of the view that the learned court below has failed to appreciate the material available on record. The order passed by the court below is liable to be set aside.
13. Accordingly, the appeal is allowed and the order dated 26.10.2021 passed by the learned Special Judge, SC/ST Act, Pratapgarh in bail application No.2228 of 2021, arising out of Case Crime No.262 of 2021, under Sections 376, 506 I.P.C. and Sections 3(2)5 and 3(2)5A SC/ ST Act, Police Station Rani Ganj, District Pratapgarh is set aside.
14. Let the appellant, Ashish Patel be released on bail in the aforesaid case crime number with the following conditions:-
(i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned.
(ii) The appellant shall appear and strictly comply following terms of bond executed under section 437 sub section 3 of Chapter- 33 of Cr.P.C.:-
(a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter.
(b) The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and
(c) The appellant 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 or tamper with the evidence.
(iii) The appellant shall cooperate with investigation /trial.
(iv) The appellant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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.
(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(vi) In case, the appellant misuses the liberty of bail during trial, in order to secure his presence, proclamation under section 82 Cr.P.C. is issued and the appellant 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 of the Indian Penal Code.
(vii) The appellant shall remain present, 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 absence of the appellant 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.
Order Date :- 1.5.2023 A.Dewal