Allahabad High Court
Praduman Singh vs State Of U.P. And 3 Others on 9 May, 2023
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:99696 Court No. - 76 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46902 of 2022 Applicant :- Praduman Singh Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Arvind Prabodh Dubey Counsel for Opposite Party :- G.A.,Anit Kumar Pal,Ashok Kumar Giri,Tanisha Jahangir Monir Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri A.P. Dube, learned counsel for applicant, Sri Sunil Srivastava, learned AGA for State as well as counsel for Informant.
2. Applicant-Praduman Singh has approached this Court by way of filing present bail application seeking enlargement on bail in Case Crime No. 291 of 2022, under Sections 363, 366, 376 IPC, 3/4, 5/6 POCSO Act and 3(2)(V) SC/ST Act, Police Station Khorabar, District Gorakhpur, after rejection of his bail application vide order dated 28.09.2022 passed by Additional Sessions Judge/ Special Judge, POCSO Act, Court No. 1, Gorakhpur.
3. By way of a supplementary affidavit, learned counsel for applicant has brought on record testimony of PW-1, complainant and PW-2, victim, that both witnesses have not supported case of prosecution and are declared hostile. He further submits that on the basis of such evidence possibility of conviction appears to be very weak, therefore, applicant may be released on bail.
4. Learned AGA and counsel for informant have not contradicted the facts brought on record by way of supplementary affidavit, as referred above.
5. In the background of above referred circumstances as well as considering that star witnesses including victim have not supported case of prosecution during trial and are declared hostile, there is substance in the argument of learned counsel for applicant about weak possibility of conviction, therefore, the applicant, who is in jail since 29.07.2022, has made out a case for bail.
6. 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.
7. Let the applicant-Praduman Singh 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.
8. 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.
9. The bail application is allowed.
10. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.
11. However, considering contrary stand of the victim, Trial Court is directed to initiate summary proceedings against victim for giving false evidence as provided under Section 344 Cr.P.C. at appropriate stage and in this regard it would be appropriate to refer the relevant paragraphs of judgments passed by Supreme Court in Hemudan Nanbha Gadhvi vs. State of Gujarat, (2019) 17 SCC 523 and Mahila Vinod Kumari Vs. State of Madhya Pradesh, (2008) 8 SCC 34:
Hemudan Nanbha Gadhvi :-
"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."
Mahila Vinod Kumari :-
"8. In the present case, on the basis of the allegations made by the petitioner, two persons were arrested and had to face trial and suffered the ignominy of being involved in a serious offence like rape. Their acquittal, may, to a certain extent, have washed away the stigma, but that is not enough. The purpose of enacting Section 344 CrPC corresponding to Section 479-A of the Code of Criminal Procedure, 1898 (hereinafter referred to as "the old Code") appears to be to further arm the court with a weapon to deal with more flagrant cases and not to take away the weapon already in its possession. The object of the legislature underlying enactment of the provision is that the evil of perjury and fabrication of evidence has to be eradicated and can be better achieved now as it is open to courts to take recourse to Section 340(1) (corresponding to Section 476 of the Old Code) in cases in which they have failed to take action under Section 344 CrPC.
9. This section introduces an additional alternative procedure to punish perjury by the very court before which it is committed in place of old Section 479-A which did not have the desired effect to eradicate the evils of perjury. The salient features of this new provision are:
(1) Special powers have been conferred on two specified courts, namely, the Court of Session and Magistrate of the First Class, to take cognizance of an offence of perjury committed by a witness in a proceeding before it instead of filing a complaint before a Magistrate and try and punish the offender by following the procedure of summary trials. For summary trial, see Chapter 21.
(2) This power is to be exercised after having the matter considered by the court only at the time of delivery of the judgment or final order.
(3) The offender shall be given a reasonable opportunity of showing cause before he is punished.
(4) The maximum sentence that may be imposed is 3 months' imprisonment or a fine up to Rs 500 or both.
(5) The order of the court is appealable (vide Section 351).
(6) The procedure in this section is an alternative to one under Sections 340-343. The court has been given an option to proceed to punish summarily under this section or to resort to ordinary procedure by way of complaint under Section 340 so that, as for instance, where the court is of the opinion that perjury committed is likely to raise complicated questions or deserves more severe punishment than that permitted under this section or the case is otherwise of such a nature or for some reasons considered to be such that the case should be disposed of under the ordinary procedure which would be more appropriate, the court may choose to do so [vide sub-section (3)].
(7) Further proceedings of any trial initiated under this section shall be stayed and thus, any sentence imposed shall also not be executed until the disposal of an appeal or revision against the judgment or order in the main proceedings in which the witness gave perjured evidence or fabricated false evidence [vide sub-section (4)].
10. For exercising the powers under the section the court at the time of delivery of judgment or final order must at the first instance express an opinion to the effect that the witness before it has either intentionally given false evidence or fabricated such evidence. The second condition is that the court must come to the conclusion that in the interest of justice the witness concerned should be punished summarily by it for the offence which appears to have been committed by the witness. And the third condition is that before commencing the summary trial for punishment the witness must be given reasonable opportunity of showing cause why he should not be so punished. All these conditions are mandatory. (See Narayanswami v. State of Maharashtra (1971) 2 SCC 182 : 1971 SCC (Cri) 507)
11. The object of the provision is to deal with the evil of perjury in a summary way.
12. The evil of perjury has assumed alarming propositions (sic proportions) in cases depending on oral evidence and in order to deal with the menace effectively it is desirable for the courts to use the provision more effectively and frequently than it is presently done."
12. It is also directed that compensation, if any, granted to victim shall be recovered in accordance with law.
13. A copy of this order be sent to Trial Court for compliance.
Order Date :- 9.5.2023 AK