Allahabad High Court
Kalu @ Chandramohan vs State Of U.P. on 25 April, 2022
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 55359 of 2021 Applicant :- Kalu @ Chandramohan Opposite Party :- State of U.P. Counsel for Applicant :- Rajat Kumar Shukla,Rajesh Shukla Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Shushil Kumar Pandey, Advocate holding brief of Mr. Rajat Kumar Shukla, the learned counsel for applicant-Kalu @ Chandramohan and the learned A.G.A. for State.
2. Perused the record.
3. Instant bail application has been filed by applicant-Kalu @ Chandramohan seeking his enlargement on bail in Case Crime No.316 of 2021 under Sections 376, 354B, 342, 323, 504 and 506 I.P.C. Police Station-Raya, District- Mathura, during the pendency of the trial.
4. Record shows that in respect of an incident, which is alleged to have occurred on06.09.2021, a delayed F.I.R. dated 07.09.2021 was lodged by first informantSmt. Wasmati Devi (mother of prosecutrix) and was registered Case Crime No.316 of 2021 under Sections 354 (gh), 342, 323, 504 and 506 I.P.C. Police Station-Raya, District- Mathura. In the aforesaid F.I.R., two persons namely Kaloo (applicant herein) and Sonu have been nominated as named accused.
5. The gravamen of the allegations made in aforesaid F.I.R. is to the effect the named accused have dislodged the modesty of the prosecutrix.
6. After registration of aforesaid F.I.R., Investigating Officer proceeded with statutory investigation of afore-mentioned case crime number in terms of Chapter XII Cr.P.C. Statement of prosecutrix was recorded by Investigating Officer under Section 161 Cr.P.C. Copy of the same is on record as Annexure-3 to the affidavit filed in support of present application for bail. In her aforesaid statement, prosecutrix has stated that named accused Sonu has dislodged her modesty. Thereafter, prosecutrix was requested for her medical examination. However, prosecutrix has refused for her internal as well as her external examination. However, prosecutrix in her statement before the Doctor has not nomiatted any of the named accused for having committed sexual assault upon her. Ultimately, the statement of prosecutrix was recorded under Section 164 Cr.P.C. The same is on record as Annexure- S.A.-4 to the supplementary affidavit. Prosecutrix in her aforesaid statement has reiterated her earlier statement recorded under Section 161 Cr.P.C.
7. During course of investigation, Investigating Officer examined first informant and other witnesses under Section 161 Cr.P.C., who have supported the prosecution story as unfolded in the F.I.R.. On the basis of above and other material collected by Investigating Officer during course of examination, he came to the conclusion that complicity of named accused is explicit. Accordingly he submitted the charge-sheet dated 26.11.2021 whereby named accused have been charge-sheeted under Sections 376, 354B, 342, 323, 504 and 506 I.P.C.
8. At the very outset, learned counsel for applicant submits that co-accused Sonu has already been enlarged on bail by this court vide order 25.02.2022 passed in Criminal Misc. Bail Application No. 49816 of 2021 (Sonu Vs. State of U.P.). For ready reference, order dated 25.02.20212 is reproduced herein under:-
"Heard learned counsel for the applicant, Sri Sanjay Singh, learned AGA-I, appearing for the State and perused the material brought on record.
It has been contended by the learned counsel for the applicant that the applicant has been falsely implicated in the present case due to ulterior motive. Victim is a major girl. It is next contended that there is no specific allegation of rape against the applicant in statement of the victim herself recorded under Section 161 Cr.P.C. as well as 164 Cr.P.C.. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused has also been touched upon at length. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required. It has also been submitted that the applicant is languishing in jail since 20.9.2021. Applicant has no previous criminal history.
Learned A.G.A. has vehemently opposed the prayer.
Courts have taken notice of the overcrowding of jails during the current pandemic situation (Ref.: Suo Motu Writ Petition (c) No. 1/2020, Contagion of COVID 19 Virus in prisons before the Supreme Court of India). These circumstances shall also be factored in while considering bail applications on behalf of accused persons.
Having heard the submissions of learned counsel of both sides, nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment, and larger mandate of the Article 21 of the Constitution of India, the dictum of Apex Court in the case of Dataram Singh v. State of U.P. and another, reported in (2018) 2 SCC 22 and without expressing any opinion on the merit of the case, I find it to be a case of bail.
Let applicant- Sonu, be released on bail in Case Crime No. 316 of 2021, under Sections- 376, 354-B, 342, 323, 504, 506 IPC, Police Station- Raya, District- Mathura, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
1. The applicant will attend and co-operate the trial proceedings pending before the court concerned on the date fixed after release.
2. He will not tamper with the witnesses.
3. He will not indulge in any illegal activities during the bail period.
The identity, status and residential proof of sureties will be verified by the court concerned and in case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail and send the applicant to prison.
It is clarified that the observations, if any, made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the ultimate merits of the case.
In case of breach of of any of the above conditions, it shall be a ground for cancellation of bail.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 25.2.2022 "
9. On the aforesaid premise, it is urged by learned counsel for applicant that case of present applicant is on better footing than that of co-accused Sonu, who has already been enlarged on bail. There is no such distinguishing feature on the basis of which case of present applicants can be distinguished from the aforesaid co-accused so as to deny him bail. It is then contended that for the facts and reasons mentioned in aforesaid order dated 25.02.2022 passed in Criminal Misc. Bail Application No. 49816 of 2021 (Sonu Vs. State of U.P.)., applicant is also liable to be enlarged on bail on the ground of parity.
10. Learned counsel for applicant then contends that prosecutrix is major. She is aged about 19 years. Her statements before Doctor as well as under Sections 161/ 164 Cr.P.C. are inconsistent but no explanation has been offered regarding the same. Medical evidence does not support the prosecution story as unfolded in F.I.R.
11, Learned counsel for applicant further contends that though the applicant is a named as well as charge-sheeted accused but he is innocent. Applicant has been falsely implication in afore-mentioned case crime number. Applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 07.12.2021. As such, he has under-gone more than four and a half months of incarceration. In case applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. Charge-sheet has already been submitted against applicant therefore the evidence sought to be relied upon by the prosecution against applicant stands crystallised. As such, custodial arrest of applicant is not absolutely necessary during the course of trial. On the cumulative strength of aforesaid, learned counsel for applicant urged that applicant be enlarged on bail.
12. Per contra, the learned A.G.A. has opposed the present bail application. Learned A.G.A. submits that applicant is not only named accused but also a charge-sheeted accused. As such, applicant does not deserve any indulgence by this Court. However, learned A.G.A. could not dispute the factual and legal submissions urged by learned counsel for applicant.
13. Having heard learned counsel for applicant, learned A.G.A. for State, upon consideration of evidence on record, accusations made as well as complicity of applicant but without expressing any opinion on the merits of the case, applicant has made out a case for bail.
14. Let the applicant-Kalu @ Chandramohan involved in aforesaid case crime number be released on bail 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) Applicant will not tamper with prosecution evidence.
(ii) 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) Applicant will not indulge in any unlawful activities.
(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.
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 of applicant and send him to prison.
16. Accordingly, present bail application-Kalu @ Chandramohan is allowed.
Order Date :- 25.4.2022 YK