Allahabad High Court
Neeraj Diwakar vs State Of U.P. on 5 October, 2023
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:191449 Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44161 of 2022 Applicant :- Neeraj Diwakar Opposite Party :- State of U.P. Counsel for Applicant :- Sanjay Ojha,Adarsh Bhushan,Ishwar Chandra Tyagi Counsel for Opposite Party :- G.A.,Deepak Kumar Kol Hon'ble Samit Gopal,J.
1.List revised.
2. Heard Sri Abhay Singh Tomar, learned Advocate holding brief of Sri Adarsh Bhushan, learned counsel for the applicant, and Sri Virendra Pratap Singh, learned A.G.A. for the State and perused the material on record. However, Sri Deepak Kumar Kol, learned counsel for the first informant is not present even in the revised list.
3. On 08.05.2023 following order was passed by a coordinate Bench of this Court:
"Learned A.G.A., upon instructions, submits that in the earlier F.I.R. dated 01.07.2022 lodged by the father of the victim against the applicant at Case Crime No. 375 of 2022 for the offence under Section 366 I.P.C., final report dated 27.07.2022 was submitted by the investigating officer to the authority concerned but the same was sent to the concerned court below on 26.04.2023 in which 29.05.2023 is the date fixed.
In view of the above, this Court deem it appropriate to hear this bail application after passing an order by the concerned court below on the final report submitted by the investigating officer.
List this case on 07.06.2023 as fresh before the appropriate Bench."
4. Subsequently, on 20.07.2023 following order was passed by this Court:
"1. Heard Shri Adarsh Bhushan, learned counsel for the applicant, Shri Deepak Kumar Kol, learned counsel for the first informant and Shri Ajay Singh, learned A.G.A. for the State.
2. Learned counsel for the applicant submits that although on 8.5.2023, there is an order passed by coordinate Bench of this Court wherein it has been noted that the bail application be heard after passing an order by the concerned trial court on the final report submitted by the Investigating Officer in Case Crime No. 375 of 2022 for the offence under Section 366 IPC and as per his instructions, notices have been issued to the first informant therein but he is not appearing before the concerned trial court and as such the trial court is unable to pass any order.
3. Learned counsel for the applicant submits that he intends to file the order-sheet of the concerned trial court to show the conduct of the first informant therein and then the bail application be heard and decided as the applicant is in jail since 19.08.2022.
4. Learned counsel for the State has no objection in the event the order sheet of the concerned trial court is filed.
5. In view of the same, let the matter be listed on 16 August 2023.
6. In the meantime, learned counsel for the applicant shall file the required supplementary affidavit along with relevant document."
5. Learned counsel for the applicant has placed a supplementary affidavit-III dated 09.08.2023 and by placing Annexure-SA-1 to the same being the ordersheet of case no.513 of 2023 concerning case crime no.375 of 2022 under Section 366 IPC, PS- Gajrola, District- Amroha which is from 26.04.2023 to 03.08.2023 and while placing the same has argued that after submission of final report in the matter on 26.04.2023, the first informant therein has not appeared before the trial court as has been stated in the orders therein. It is argued that the bail application be heard as such.
6. Learned AGA for the State states that he has no objection to the same.
7. In view of the same, the Court proceeds to hear the matter.
8. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Neeraj Diwakar, seeking enlargement on bail during trial in connection with Case Crime No. 401 of 2022, under Sections 328, 376, 120B, 506 I.P.C., Police Station Amroha Nagar, District Amroha.
9. The first information report of the present matter was lodged on 18.08.2022 by the victim herself against the applicant and one Arti Tiwari (Bhabhi of the applicant) alleging therein that she became friend with a boy through instagram. He on assuring her of friendship defrauded her and when she went to meet him in his house his bhabhi gave her some cold drink to drink and after drinking, she became unconscious and when she regained her consciousness, she found the applicant lying beside her and herself naked. There was blood coming out from her private part. The applicant then showed her the videos and photographs and threatened her of making the same viral. He continued to commit rape upon her and take money from her. His family helped him in this. The victim resisted about it but he did not stop doing the act. Her date of birth is 06.07.2004
10. Learned counsel for the applicant argued that the applicant has been falsely implicate in the present case. He submitted that the present case is a case of consensual relationship. It is further argued that the medical examination of the victim does not support the prosecution story. As per high school marksheet of the victim she was aged about 18 years at the time of the incident. It is further argued that the investigating officer during investigation did not recover any such video or photograph of the victim which she has alleged to have been recorded by the applicant on the basis of which he is stated to have blackmailed her for sometime. It is argued that the applicant has no criminal history as stated in para 20 and is in jail since 19.08.2022.
11. Per contra, learned counsel for the State has opposed the prayer for bail.
12. After having heard learned counsel for the parties and perusing the record, it is apparent that the victim herself went to the house of the applicant where she states to have been raped. She was major and also the medical evidence does not support the prosecution story, no video or photograph of the victim stated to be recorded by the applicant on the basis of which she is stated to be blackmailed has been recovered during investigation.
13. 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.
14. Let the applicant- Neeraj Diwakar, 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 she 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 her 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 her, 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 her in accordance with law and the trial court may proceed against her 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.
15. 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.
16. The bail application is allowed.
Order Date :- 5.10.2023 Deepika