Allahabad High Court
Narayan Kumar @ Ramnarayan Bind vs State Of U.P. Through Secretary Home ... on 17 May, 2023
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:107821 Court No. - 75 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3133 of 2023 Applicant :- Narayan Kumar @ Ramnarayan Bind Opposite Party :- State Of U.P. Through Secretary Home Department Lucknow And 3 Others Counsel for Applicant :- Mohd. Shahanshah Khan Counsel for Opposite Party :- G.A. Hon'ble Sanjay Kumar Singh,J.
1- Heard learned counsel for the applicant as well as learned Additional Government Advocate representing the State.
2- By means of this application under Section 439 of Cr.P.C., applicant-Narayan Kumar @ Ramnarayan Bind, who is involved in S.T. No. 552 of 2022 arising out of Case Crime No. 59 of 2022, under Sections 363, 366, 376 of I.P.C. and Section 5j(ii)/6 of POCSO Act 2012, Police Station-Madihan, District-Mirzapur, seeks enlargement on bail during the pendency of trial.
3- On the matter being taken up, learned counsel for the applicant submits that in this case, by the order of the coordinate Bench of this Court dated 15.02.2023, applicant has been granted interim bail for a period of three months. The order dated 15.02.2023 is quoted herein below:
"Heard learned counsel for the applicant and learned A.G.A for the State.
There is allegation against the applicant of abduction of minor girl with intent to marry, commission of offence of rape and under section 5 j(ii)/6 of POCSO Act.
Learned counsel for applicant has submitted that the victim eloped with the applicant and married him. Thereafter, she has become pregnant.
After hearing the learned counsel for the parties, this Court finds that there is possibility of compromise between the parties. The applicant is in jail since 23.07.2022 and he has no criminal history to his credit.
The applicant is directed to be enlarged on interim bail for three months.
On the other hand learned A.G.A has opposed the prayer for bail.
Keeping in view the nature of the offence, evidence, complicity of the accused; submissions of the learned counsel for the parties noted above; finding force in the submissions made by the learned counsel for the applicant; keeping view the uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under-trial having fundamental right to speedy trial; larger mandate of the Article 21 of the Constitution of India; considering the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018) 3 SCC 22 and recent judgment dated 11.07.2022 of the Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021; considering 5-6 times overcrowding in jails over and above their capacity by the under trials and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
Let the applicant, Narayan Kumar @ Ramnarayan Bind,involved in Case Crime No. 59 of 2022, under Sections- 363, 366, 376 IPC and Section 5 j(ii)/6 of POCSO Act, 2012 , Police Station- Madihan,District- Mirzapur, be released on interim bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned for a period of three months subject to following conditions. Further, before issuing the release order, the sureties be verified.
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) The applicant 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.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.
(iv) 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. is issued and the 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 of the Indian Penal Code.
(v) The applicant shall remain present in person 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 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.
In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
List this case on 16 May, 2023.
In failure to comply this order, the interim bail for the period of three months granted to the applicant shall stand cancelled and he shall be taken into custody forthwith."
4- On putting query with regard to compliance of order dated 15.02.2023, learned counsel for the applicant submits that the applicant has been released on bail, but no effort has been made by the applicant in the matter with regard to settlement between the parties. He prays for extension of the order dated 15.02.2023.
5- On the other hand, learned A.G.A. for the state opposed the relief as sought on behalf of the applicant by contending that the matter relates to POCSO Act, and without issuing notice to the Child Welfare Committee, Mirzapur/opposite party no. 2 and first informant of this case/opposite party no.4 as well as without considering the merit of the case, applicant has been granted interim bail for a period of three months considering the submissions of the learned counsel for the applicant that the victim eloped with the applicant and married him, therefore, she has become pregnant and there is a possibility of compromise between the parties. It is next submitted that no effort of settlement has been made from the side of the applicant in terms of submissions made by the learned counsel for the applicant at the time of granting interim bail vide order dated 15.02.2023. It is further submitted that as on date applicant is not in custody, therefore, in view of the provisions of section 439 (1)(a) of the Cr.P.C., his bail application cannot be heard on merit.
6- Having heard the learned counsel for the parties and perusing the record, I find that though in view of the judgment of the Hon'ble Apex Court in the case of State of Madhya Pradesh Versus Laxmi Narayan and others, AIR 2019 SC 1296, compromise in the cases of rape is not permissible under the law, but it appears that under the peculiar circumstances of the case, the Co-ordinate Bench has granted interim bail to the applicant considering the submissions of the learned counsel for the applicant that victim has become pregnant from the physical relation of the applicant and there is possibility of compromise between the parties subject to condition that in failure to comply with the order, the interim bail for the period of three months granted to the applicant stands cancelled and he shall be taken into custody forthwith. I also find that even after release on interim bail, no sincere effort has been made by the applicant to settle the issue. This Court is also of the view that in order to achieve the object of the POCSO Act 2012 and Rules 2020 framed thereunder, it is mandatory to afford a fair opportunity of hearing to the child/victim in the bail application as well as other proceeding before passing any order on merit. The duty is cast upon the Court to ensure that child/informant is informed about the case related to victim under POCSO Act. Order-sheet shows that before or even after granting interim bail to accused-applicant no notice was issued to the victim or her parents.
7- Since the purpose of granting interim bail by the order dated 15.02.2023 has not been complied with by the applicant in true sense and no affidavit has been filed with regard to said settlement, therefore, I do not find any good ground to extend the order dated 15.02.2023.
8- So far as hearing of this bail application on merit is concerned, I find substance in the submission of learned A.G.A. that offence of rape is heinous in nature, therefore unless the applicant is in custody, his bail application cannot be heard on merit in view of the provisions of section 439 (1)(a) of the Cr.P.C.
9- Accordingly, the instant bail application is rejected.
10- The applicant is directed to surrender forthwith before the concerned Court below, failing which the coercive action shall be taken against him by the authorities concerned. On surrendering of the applicant before the concerned Court below, he shall be remanded to judicial custody.
11- However, it is open for the applicant to move a fresh bail application for consideration of the same on merit after his surrender before the concerned Court below.
Order Date :- 17.5.2023 Kashifa