Allahabad High Court
Kuldeep Kishore Sharma vs State Of U.P. And Another on 25 March, 2019
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 12.03.2019 Delivered on 25.03.2019 Court No. - 34 Case :- Cri. Misc. Bail Cancellation Application No. 23049 of 2014 Applicant :- Kuldeep Kishore Sharma Opposite Party :- State of U.P. and another Counsel for Applicant :- Manish Tiwary, Ashwini Kumar Awasthi Counsel for Opposite Party :- Govt. Advocate, Indra Kumar Chaturvedi, Manish Tandon, Mukhtar Alam Hon'ble Sudhir Agarwal,J.
1. Heard Sri Manish Tiwary, Advocate, assisted by Sri R.P. Pandey, Advocate, for applicant; and, Sri I.K. Chaturvedi, Advocate and Sri Mukhtar Alam, Advocate for accused-respondent-2.
2. This is an application whereby applicant has prayed for cancellation of bail granted to respondent-2, Yogendra Sagar, vide order dated 03.06.2014, passed by Sessions Judge, Budaun in Case No. 64 of 2011 under Sections 376(2)(g) and 506 I.P.C, Police Station Bilsi, District Badaun. Applicant is father of victim.
3. Facts in brief, necessary for adjudication of this application, need be summarized as under.
4. On 29.04.2008, applicant lodged a Police Report at Police Station Bilsi that his daughter, Neha Sharma alias Jyoti Sharma had gone to attend her examination of B.A. Part-II, Paper Sociology in the second meeting on 23.04.2008 but has not returned till then and is missing. Report was registered as Missing Report No. 22. Police could not make any progress to find out girl but applicant continued with his private attempts and inquiries to find out whereabouts of girl. He came to know from the witnesses that on the date of incident, his daughter was seen in the Car of one Tejendra Sagar and Neeraj Sharma. Applicant informed this fact to the Police on 04.05.2008. Thereafter Report was lodged as Case Crime No. 378 of 2008, under Sections 366 I.P.C. against aforesaid two persons. On 17.05.2008, applicant's daughter was chance recovered from Railway Station of District Muzaffarnagar. Police got her medical examination conducted on 17.05.2008. Statement under Section 164 Cr.P.C. was also sought to be recorded on the same date, but Magistrate refused on the ground that victim was not in the state of mind to give free statement, and fear was writ large on her face. Ultimately her statement was recorded on 22.05.2008 and based thereon a final report was submitted by Police on 25.09.2008.
5. Applicant made complaint to various authorities that the statement of girl under Section 164 Cr.P.C. was recorded under duress and she was under influence of drugs. Ultimately an affidavit of girl was also submitted to District Judge, Budaun on 01.07.2008. Applicant also filed a Protest Petition before Second Additional Chief Judicial Magistrate, Budaun on 28.11.2008. It was stated in Protest Petition that Neeraj Sharma was a distant relative of victim and used to come to her House. Thereafter, he started bringing Tejendra Sagar which was opposed by the Girl. On the fateful day, she was forcibly dragged in a Car by the above named two persons along with other unidentified persons. After being drugged unconscious she was driven upto Lucknow where again she was drugged and raped by aforesaid two persons and also a close relative of Tejendra Sagar, i.e. Yogendra Sagar, the then sitting M.L.A. of Ruling Party. She was repeatedly gang raped by them for several days. Upon raising public outcry she was released at Muzaffarnagar wherefrom she was allegedly recovered.
6. Magistrate rejected final report, treated Protest Petition as Criminal Complaint, and proceeded to record statement of victim, her father, eye witnesses and Doctor who had examined her, under Sections 200 and 202 Cr.P.C. Thereafter Magistrate summoned Tejendra Sagar and Neeraj Sharma under Section 366, 376(2)(g) and 506 I.P.C. while Yogendra Sagar was summoned under Section 376(2)(g) and 506 I.P.C. vide order dated 18.08.2009.
7. Tejendra Sagar challenged Magistrate's order dated 18.08.2009 in an application filed under Section 482 Cr.P.C. being Criminal Misc. Application No. 26758 of 2009 but the same was dismissed by order dated 21.10.2009. Tejendra Sagar went in appeal to Supreme Court in Special Leave to Appeal (Criminal) No. 8717 of 2009 but the same was also dismissed vide order dated 30.11.2009.
8. Sri Neeraj Sharma, also challenged summoning order dated 18.08.2009 before Sessions Judge, which was dismissed whereafter he surrendered.
9. So far as respondent-2, i.e. Yogendra Sagar is concerned, he also challenged summoning order in Criminal Revision No. 2 of 2010 before Sessions Judge. Since Revision was barred by limitation, an application under Section 5 of Limitation Act, 1963 (hereinafter referred to as "Act, 1963") requesting for condonation of delay was also filed. By order dated 06.07.2010 application filed under Section 5 of Act, 1963 was rejected by Sessions Judge. Consequently Revision also stood dismissed as barred by limitation. Respondent-2 then came to this Court in Criminal Misc. Writ Petition No. 13639 of 2010 wherein, on 29.07.2010, this Court passed following interim order:
"This writ petition has been filed against the orders dated 18.8.09 and 6.7.10 passed by the courts below. Vide order dated 18.8.09 the petitioner along with others was summoned by the ACJM, Court No.2, Badaun under Sections 366, 376(g), 506, IPC and when that order was challenged in revision, the revision was dismissed as it was found to be barred by time. This order was passed on 6.7.10.
Heard Mr. Dilip Kumar, learned counsel for the petitioner, Mr. Manish Tiwary for O.P. No.2, learned AGA and perused the record.
It has been argued by Mr. Dilip Kumar that the victim went missing on 23.4.08 regarding which missing report was given by her father Kuldeep Kishor Sharma on 29.4.08 in which the petitioner was not named. Thereafter, the statement of Kuldeep Kishor Sharma was recorded on 4.5.08 in which he suspected that in the taking away of the girl Tejendra Sagar and Meenu @ Neeraj Sharma were instrumental at which the case was registered under Section 366, IPC. Subsequently thereto, the girl was recovered on 17.5.08. Her statement was recorded under Section 161, Cr.P.C. on the very same day in which she narrated that she had married with Mohd. Shami @ Rohit. As the police wanted to get her statement recorded under Section 164, Cr.P.C. on the same day, it was objected by the father of the girl and on his request the girl was sent to Nari Niketan. She remained there for 5 days. Her statement under Section 164, Cr.P.C. was recorded by the Magistrate on 22.5.08. In that statement too she did not name the petitioner. Thereafter, on the request of the first informant the matter was transferred for investigation to the C.B.C.I.D. Before the C.B.C.I.D. the statement of the girl was recorded under Section 161, Cr.P.C. and in that statement too she did not name the petitioner and also repeated the same version which she had also taken in her statement under Section 164, Cr.P.C. The C.B.C.I.D. submitted final report in the case. Against the final report protest petition was filed by the father of the girl. That protest petition was treated to be a complaint. In support of the complaint statements of the father, the girl and three other relatives were recorded and thereafter, the trial court passed the summoning order. That summoning order was challenged in revision and the revision was dismissed as it was found time barred.
It has been argued by Mr. Dilip Kumar that in view of the above factual matrix it is very much clear that the statements of the girl and her father and relatives was nothing but a device to falsely implicate the petitioner and others otherwise there could not have been any occasion for 11 months to keep mum and not to name the petitioner at two stages of the investigation i.e. investigation before the local police and the C.B.C.I.D. In view of the above, this petition is admitted.
Issue notice to O.P. No.2 to file counter affidavit within 2 weeks. Rejoinder affidavit may be filed within 1 week thereafter.
List thereafter.
Till then, the trial of case no.755 of 2010, under Section 366, 376(g), 506, IPC shall remain stayed against the petitioner only."
10. It has also come on record that interim order was not extended after 03.01.2011, yet no attempt was made by Police to arrest respondent-2 and no proceedings commenced in the Court below also. Writ Petition No. 13639 of 2010 came to be decided vide judgment dated 18.07.2012. This Court held that Delay Condonation Application was rejected in a technical manner instead of considering to do substantial justice. Court set aside order dated 06.07.2010, condoned delay and directed Sessions Judge, Budaun to decide Revision on merits, without granting any unnecessary adjournment to either parties. Revision was registered as Criminal Revision No. 230 of 2012 and thereafter decided vide judgment dated 22.08.2012 by Sessions Judge, Budaun by dismissing the same. Prima facie Court found no illegality, irregularity or manifest error in the summoning order passed by Magistrate in respect of respondent-2. He again came to this Court filing an application under Section 482 Cr.P.C. being Criminal Misc. Application No. 28503 of 2012 which was dismissed vide judgment dated 14.09.2012.
11. Accused Neeraj Sharma, in the meantime filed Criminal Misc. Bail Application No. 30150 of 2010 before this Court after rejection of his Bail Application by Trial Court vide order dated 21.09.2010. This Court considered Bail Application at length and taking into account various proceedings initiated from time to time and also noticing criminal history, declined to grant bail and dismissed Bail Application vide order dated 06.04.2011.
12. Similarly, Bail Application of Tejendra Sagar was also dismissed by this Court vide order dated 10.01.2012.
13. Tejendra Sagar challenged order dated 10.01.2012 before Supreme Court in Special Leave to Appeal (Criminal) No. 2199 of 2012 but the same was dismissed on 26.03.2012.
14. Respondent-2, in the meantime, has not surrendered, hence Court below, by order dated 12.07.2010 and 29.03.2011, initiated proceeding under Section 82 Cr.P.C., and non bailable warrant was issued. Warrant was sought to be served but in the meantime since stay was granted by this Court in Writ Petition No. 13639 of 2010, further proceedings stood deferred but after decision of writ petition and thereafter dismissal of Revision by Sessions Judge by order dated 22.08.2012, fresh non bailable warrant was issued by Judicial Magistrate-I, Budaun vide order dated 27.08.2012 besides directing for initiating proceedings under Section 83 Cr.P.C.
15. Police did not execute either non bailable warrant or attachment warrant. These facts were brought to the notice of Magistrate whereon Court vide order dated 12.09.2012 directed Police to execute non bailable warrant and proceed under Section 83 Cr.P.C. Still Police failed to arrest respondent-2. Thereafter, a further order was passed on 07.11.2012 by Magistrate, operative part whereof reads as under:
^^,d vU; izkFkZuk&i= ifjoknh }kjk bl vk'k; dk fn;k x;k gS fd ifjoknh us fn0 26-10-12 dks bl eqdnesa esa izkFkZuk&i= fn;k Fkk] ftlesa vfHk;qDr dh lEifRr ds laca/k esa izkFkhZ dks izkIr m)j.k [krkSfu;k Fkha] mudks layXu djus dk izkFkZuk i= esa vafdr fd;k Fkk] ysfdu lgou og m)j.k [krkSfu;k layXu gksus ls jg x;hA vr% ;ksxsUnz lkxj dh lEifRr m)j.k [krkSfu;k dqy 10 ist izekf.kr izfr;ka rFkk mlds }kjk ukehus'ku ds le; fn;k x;k lEifRr dk fooj.k layXu izkFkZuk&i= fd;k tkrk gS] ftudks izkFkZuk&i= fnukafdr 25-10-12 ds lkFk layXu fd;k tk;sA esjs }kjk i=koyh rFkk izkFkZuk&i= ds lkFk layXu dh x;h m)j.k [krkSfu;kWa dk voyksdu fd;k x;kA pwWafd vfHk;qDr vHkh rd Qjkj pyk vk jgk gSA vr% ,slh fLFkfr esa izkFkZuk&i= ,oa layXu [krkSfr;ksa esa vfHk;qDr ;ksxsUnz lkxj ds uke of.kZr vpy lEifRr ds laca/k esa dqdhZ gsrq ftykf/kdkjh cnk;wWa dks i= fy[kk tk;sA vfHk;qDr ds fo:) ,u-ch-MCyw- @ 83 tkjh gksA i=koyh okLrs vfxze vkns'k fnukad 17-11-12 dks is'k gksA** "Another application has been filed by the complainant to the effect that the complainant, in this case, moved an application dated 26.10.2012 making mention of Khataunis, which the applicant had, with respect to the property of the accused and requesting them to be annexed to the case; but the Khataunis could not inadvertently be annexed to it. Hence, the Khataunis (total 10 pages) relating to the property of the accused Yogendra Sagar, and the details of the property submitted by him at the time of 'nomination' are annexed to the application; which be annexed to the application dated 25.10.2012.
The file and the Khataunis, annexed to the application, are perused by me. As the accused has still been absconding, a letter, in such a situation, be written to District Magistrate, Budaun, with respect to attachment of the accused Yogendra Kumar's immovable property mentioned in the application and in the Khataunis annexed to it. NBW/83 be issued against the accused.
The file be put up on 17.11.12 for further orders."
(English Translation by Court)
16. Alleging that Police is in collusion with respondent-2, who is a Member of Legislative Assembly of U.P. belong to Ruling Party, no serious action has been taken, applicant, Kuldeep Kishore Sharma, brought the matter before this Court in Writ Petition No. 4292 of 2013 wherein, on 25.03.2014, this Court passed an order directing Principal Secretary (Home), Director General of Police, U.P. and Senior Superintendent of Police, Budaun to ensure execution of non bailable warrant and custody of Yogendra Sagar and his production before Trial Court before the next date fixed or to appear in person before this Court. Relevant extract of the order passed by this Court reads as under:
"Thereafter various summons, bailable warrants and non-bailable warrants were issued in pursuance to which, two co-accused surrendered and their bails were also rejected but the present respondent no. 4 kept avoiding appearance before the trial court. Having failed his legal attempts, the accused persons exercised their influence and started pressurizing the victim, petitioner and the family members for withdrawing the protest petition and compromising the case and when they resisted, fabricated criminal cases were registered against the brothers of the victim, the petitioner, the witnesses etc. at Police Stations Bilsi, Ojhala, Civil Lines and Kotwali Ojhani. Five cases were lodged against one brother of the victim, three cases against other brother of the victim, one case against the petitioner and nine cases against the witnesses, this fact is evident from a detailed order of this Court passed in bail application no.30150 of 2010 rejecting the bail application of the co-accused Neeraj Sharma vide order dated 6.4.2011.
As neither the orders or warrants of the trial court were being executed nor the respondent no. 4 was submitting himself for trial, the petitioner was forced to file the present writ petition in March, 2013 seeking coercive steps against the accused respondent no.4 and execution of the warrants and other process.
This Court has issued various directions on 4.4.2013, 16.4.2013, 205.2013 etc. but till date the accused respondent no.4 is still roaming freely and has not submitted himself for trial. On earlier occasion, the Senior Superintendent of Police of the district had assured the court in person for execution of the warrants but that also remained unfulfilled assurance on paper. Later on, affidavits have been filed on behalf of the State stating that they are making their best effort to apprehend the respondent no.4 and secure his presence before the Court but it appears that the exercise is merely paper work.
The Court is left with no other option but to summon the highest of the police department to ensure the execution of the non-bailable warrants and to secure the presence of the accused respondent no.4 before the Court.
Accordingly, the Principal Secretary (Home), Director General of Police, U.P. and Senior Superintendent of Police, Budaun shall either ensure execution of the non-bailable warrants and custody of the respondent no.4 and his production before the trial court before the next date fixed or else all the three officials would appear in person along with their respective affidavits of explanation. In case, non-bailable warrants are executed and the accused respondent no.4 is apprehended and produced before the trial court, the said three officials need not appear in person but cause an affidavit to be filed through Station Officer, Police Station Bilsi, district Budaun informing the Court about the action and the details of the execution as aforesaid.
Let three copies of this order be given to learned A.G.A. within forty eight hours for information to the aforesaid three officials.
List on 29.4.2014.
17. Ultimately, respondent-2 surrendered on 30/31 May 2014 in the Court below and moved Bail Application No. 775 of 2014. Within three days, i.e, 03.06.2014, learned Sessions Judge passed order granting bail. Reasons assigned by Sessions Judge in granting bail which prevailed with him, as stated in the order dated 03.06.2014, read as under:
^^bl ekeys esa egRoiw.kZ rF; ;g gS fd /kkjk 164 n0iz0la0 ds c;ku dh lR;rk ds laca/k esa l= U;k;ky; ,oa ekuuh; mPp U;k;ky; esa fuxjkuh vkSj ;kfpdk,a nkf[ky dh x;h Fkha tks fujLr dh x;hA rkRi;Z ;g gqvk fd /kkjk 164 n0iz0la0 ds vUrxZr fn;k x;k c;ku vkt Hkh vfUre gS vkSj ml ij dksbZ iz'ufpUg ugha gSA f}rh; &tgkWa rd ehuw 'kekZ vkSj rstsUnz lkxj dh tekur fujLr fd;s tkus dk fcUnq gS] muds fo:) /kkjk 200 ,oa 202 n0iz0la0 esa vigj.k dk vkjksi yxk;k x;k Fkk rks izFke n`"V;k lansg dh ifjf/k esa gS ijUrq ;gka ;ksxsUnz lkxj ds fo:) vigj.k dk dksbZ Hkh vkjksi ugha gSA r`rh;&bl ckr dk dksbZ Li"Vhdj.k ugha fn;k x;k gS fd y[kuÅ o fnYyh o vU;= esa fdl LFkku ij ;ksxsUnz lkxj }kjk dc vkSj fdl le; o LFkku ij cykRdkj fd;k x;kA prqFkZ&;g Hkh Li"V ugha gS fd og ;ksxsUnz lkxj dks fdl izdkj iwoZ ls tkurh Fkh vr% tc rd U;k;ky; esa ;ksxsUnz lkxj dks mifLFkr djkdj igpku u ys] rc rd mlds lk{; bl laca/k esa iz'ufpUg ls nf'kZr gSA iape&;g Hkh mYys[kuh; gS fd izFke lwpuk fjiksVZ ntZ djkus /kkjk 161 ,oa 164 n0iz0la0 ds c;ku vafdr gksus rd izkFkhZ @vfHk;qDr ;ksxsUnz lkxj ds fo:) dksbZ Hkh vkjksi ugha yxk;k x;k FkkA mYys[kuh; gS fd ;ksxsUnz lkxj ,d laHkzkUr iwoZ fo/kk;d gSa vkSj iqfyl }kjk cjkenxh ds le; vLirky ls LikubZy dksMZ ds bykt djkrs oDr fxjQ~rkj fd;k x;k FkkA rkRi;Z ;g gqvk fd og ,d xaHkhj chekjh ls xzLr gSA vr% xq.k&voxq.k ij fVIi.kh fd;s fcuk mls dM+h 'krksZa ij tekur ij NksM+s tkuk mfpr gksxkA vr% vfHk;qDr ;ksxsUnz lkxj dk tekur izkFkZuk i= Lohdkj fd;k tkrk gSA** "In the instant case, a material fact is that revisions and other petitions had been filed before the Sessions Court and the Hon'ble High Court calling in question the veracity of the statement u/s 164 Cr.P.C., which were dismissed. That is to say, the statement made under section 164 Cr.P.C. is as of now final and there is no question mark on it. Second- As for cancellation of bails of Meenu Sharma and Tejendra Sagar, he was charged with kidnapping under sections 200 and 202 IPC, which prima-facie elicits doubt. But in the instant case, there is no charge of kidnapping against Yogendra Sagar. Third- In this regard no explanation has been given at which particular place and time, rape was committed by Yogendra Sagar in Lucknow, Delhi and at any other place. Fourth- It is also not clear how she was already acquainted with Yogendra Sagar. Hence, unless Yogendra Sagar is summoned and identified, her testimony in this regard shall attract a question mark. Fifth- It is worth mentioning that no charge was levelled against applicant/ accused Yogendra Sagar till the recording of statement u/s 161 and 164 Cr.P.C. regarding the FIR.
It is worth mentioning that Yogendra Sagar is a well reputed Ex Member of Legislative Assembly and was arrested while taking treatment of spinal cord at the time of recovery by the police. That is to say, he is suffering from serious disease. Hence, without going into merits, it would be proper to release him on bail on strict terms and conditions.
Hence, bail application of Yogendra Sagar stands allowed." (English Translation by Court)
18. It has also been stated in para-39 of Application that learned Sessions Judge who has granted bail was to retire on 31.07.2014. It is said that conduct of respondent-2 has not at all been looked into that he was absconder for last more than four years inasmuch initially non-bailable warrant was issued and proceedings under Section 82 Cr.P.C. was directed on 12.07.2010 and 29.03.2011 and subsequently fresh non bailable warrant was issued on 27.02.2012 but for almost two years, and even thereafter, respondent-2 conveniently avoided his arrest due to influence of his political clout and Police showed complete complacence with him. It is also said that bail granted to respondent-2 is bound to hamper the process of justice as he has used all his power to harass prosecution witness and therefore bail should be cancelled.
19. A detailed counter affidavit has been filed by respondent-2 running in 40 pages and 51 Annexures. The total paper-book is running in 372 pages. It is said that Police recorded statement of scribe of missing report on 06.05.2008. It is further said that applicant himself gave Mobile No. of his daughter being 9359202561 and Police from the call details thereof found that most calls were from Mobile Number 9358782648. The I.D. of above mobile was found that of one Nagendra but further investigation disclosed continuance of sale transactions of the said mobile from one to another. I.O. prepared several Parchas and submitted report that Mobile No. 9358782648 was ultimately found with Mohammad Shami Khan. On page 65, copy of Call Details has also been filed which shows that from Mobile No. 9358782648 several calls were made to Mobile No. 9359202561 between 19.04.2008 upto 30.04.2009. It has also been pointed out that in the statement under Section 164 Cr.P.C., girl Kumari Neha alias Jyoti Sharma stated that she met Mohammad Shami who earlier told his name as Rohit but subsequently disclosed his correct identity and she has married with him with her consent.
20. From Annexure CA-11, we find that Investigating Officer moved application before Magistrate stating that girl was recovered on 15.05.2008 and her statement under Section 164 Cr.P.C. need be recorded. Magistrate directed that she should be kept in Nari Niketan and should be produced later on. Her statement then was recorded on 22.05.2008. Applicant filed Revision before Sessions Judge, Budaun against Magistrate's order dated 22.05.2008 and said that Magistrate has wrongly recorded statement and despite the answers given in negative, he has recorded otherwise, but the said Revision was rejected by order dated 10.07.2008. Investigation, thereafter, it appears, was handed over to C.B.C.I.D.
21. Considering the application for release of girl, Second Additional Chief Judicial Magistrate, Budaun passed an order on 09.06.2008 holding that girl being major is free to go wherever she like. The girl thereafter moved an application on 10.06.2008 before Superintendent, Nari Niketan, Bareilly that she has apprehension to her life at Badaun, hence she may be sent in police custody to residence of her maternal uncle Sri Yogendra Upadhyay, resident of Biharipur Kaharwan, Police State Kotwali, Bareilly where she will feel safe.
22. Various subsequent orders passed by Courts below in different proceedings have been placed on record but I am refraining myself from going into details of those as this may prejudice the Trial before Court below.
23. In my view, the manner in which case has proceeded and also considering the audacity of respondent-2 that despite non bailable warrant issued by Court, for years together, he could manage to abscond and Police also could not arrest him and ultimately it is this Court's order dated 25.03.2014 when highest Officers of Police and Home Department were called upon to either arrest or appear in Court, only then respondent-2 surrendered but enlarged on bail within three days and in the last five years Trial has not completed, I am satisfied that a case of misuse of bail is made out. it is a fit case where bail granted to respondent-2 deserves to be cancelled.
24. The application is allowed. Bail order dated 03.06.2014 passed by Sessions Judge, Budaun in Bail Application No. 775 of 2014 releasing respondent-2, Yogendra Sagar, in Case No. 64 of 2011, under Sections 376(2)(g) and 506 I.P.C., Police Station Bilsi, District Budaun is hereby cancelled. Respondent-2 shall immediately surrender before Police by 01.04.2019, failing which Police shall immediately arrest him and keep him in jail so as to produce him before Trial Court as and when required for further proceedings.
Dt. 25.03.2019 PS