Allahabad High Court
Hadeesh vs State Of Up on 3 July, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:108002 Reserved on: 31.05.2024 Delivered on: 03.07.2024 Court No. - 64 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4212 of 2024 Applicant :- Hadeesh Opposite Party :- State of U.P. Counsel for Applicant :- Sunil Kumar Dubey Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Sunil Kumar Dubey, the learned counsel for applicant and the learned A.G.A. for State.
2. Perused the record.
3. This repeat application for bail has been filed by applicant- Hadeesh, seeking his enlargement on bail in Case Crime No. 276 of 2023, under Sections 452, 323, 504, 506, 354, 354B, 376, 511 IPC, Police Station- Sikandrar Rao, District Hathras, during the pendency of trial i.e. Sessions Trial No. 177 of 2024 (State Vs. Kabir and Others), now pending in the Court Sessions Judge, Hathras.
4. The first bail application of the applicant was rejected by this Court by a detailed order dated 30.11.2023, passed in Criminal Misc. Bail Application No. 48426 of 2023 (Hadeesh Vs. State of U.P.). For ready reference, the same is extracted herein under:
"1. Heard Mr. Sunil Kumar Dubey, the learned counsel for applicant and the learned A.G.A. for State.
2. Perused the record.
3. This application for bail has been filed by applicant-Hadeesh, seeking his enlargement on bail in Case Crime No. 276 of 2023, under Sections 452, 323, 504, 506, 354, 354-B, 376, 511 IPC, Police Station-Sikandara Rao, District-Hathras during the pendency of trial.
4. Record shows that in respect of an incident, which is alleged to have occurred on 18.05.2023, a delayed FIR dated 19.05.2023 was lodged by first informant-Kahkashan (i.e. the prosecutrix) and was registered as Case Crime No. 276 of 2023, under Sections 452, 323, 354, 354-B, 504, 506 IPC, Police Station-Sikandara Rao, District-Hathras. In the aforesaid FIR, 4 persons namely - (1) Kabeer, (2) Kapil, (3) Hadeesh and (4) Rajiya have been nominated as named accused.
5. The gravamen of the allegations made in the FIR is to the effect that named accused entered the house of the first informant/prosecutrix and thereafter uttered abusive words. This was objected by the first informant and her mother. Upon this, named accused assaulted the first informant and her mother with Lathi, Danda, Sariya, Fist and Leg. Named accused Kabeer, Kapil and Hadeesh caught hold of the first informant and then plunked her down on the ground. The clothes of the prosecutrix were torn and her modesty was dislodged. The prosecutrix and her mother sustained injuries.
6. After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. He first recorded the statement of the prosecutrix under Section 161 Cr.P.C. Same is on record at page 27 of the paper book. The prosecutrix in her aforesaid statement has fully supported the FIR. Apart from above, the statement of the injured i.e. mother of the prosecutrix was also recorded, which is on record at page 29 of the paper book. This witness has also supported the FIR. Ultimately, the statement of the prosecutrix was recorded under Section 164 Cr.P.C. which is on record at page 31 of the paper book. She has rejoined her previous statement under Section 161 Cr.P.C. Investigating Officer examined other witnesses under Section 161 Cr.P.C. who have also supported the FIR. The learned A.G.A. with reference to the case diary submits that the the first informant Kahkashan aged about 17 years and her mother Nahida were medically examined. Their Medico Legal Reports are on record at pages 14 and 15 of the case diary. They have sustained injuries. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of 3 of the named accused namely Kabeer, Kapil and Hadeesh is established in the crime in question. He, accordingly, submitted the charge sheet dated 13.10.2023 whereby aforementioned named accused has been charge sheeted under Sections 452, 323, 504, 506, 354, 354-B, 376, 511 IPC.
7. Learned counsel for applicant submits that applicant is innocent. He has been falsely implicated in the crime in question. A trivial dispute has been exaggerated. There is nothing on record to show that the modesty of the prosecutrix was dislodged. On the above premise, the learned counsel for applicant contends that even though applicant is a named and charge sheeed accused yet he is liable to be enlarged on bail.
8. Even though applicant has criminal history to his credit but the same has been sufficiently explained. Applicant is in jail since 22.09.2023. As such, he has undergone more than 2 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. On the above premise, he submits that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
9. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. The prosecutrix-Kahkashan is aged about 17 years and her mother Nahida who is aged about 40 years have sustained injuries as is evident from their medico legal reports. As such, occurrence is proved. As such, the applicant does not deserve any sympathy of this Court.
10. When confronted with above, the learned counsel for applicant could not overcome the same.
11. Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made, complicity of accused and coupled with the fact that the applicant is a named and charge sheeted accused, the prosecutrix who is a young girl aged about 17 years and the mother of the prosecutrix an elderly woman have sustained injuries, the said fact is extablished from the Medico Legal Reports of the injured which are on record of the case diary, as such, the occurrence is proved, the learned counsel for applicant has submitted that the injuries received by the injured in the occurrence giving rise to present criminal proceedings are simple but he could not explain as to how the injured received injuries, therefore, irrespective of the varied submissions raised by the learned counsel for applicant in support of the present application for bail, but without making any comments on the merits of the case, this Court does not find any good or sufficient ground to enlarge the applicant on bail.
12. As a result, present application for bail fails and is liable to be rejected.
13. It is accordingly rejected. "
5. Learned counsel for applicant contends that though the applicant is named and charge sheeted accused, yet he is liable to be enlarged on bail. Applicant is in jail since 22.9.2023. As such, he has undergone more than 7 months of incarceration. The Police report in terms of Section 173(2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by prosecution against applicant stands crystalized. However, up to this stage, no such, incriminating circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. It is then contended that co-accused Kapil @ Kafeel has already been enlarged on bail, vide order dated 9.1.2024, passed in Criminal Misc. Bail Application No. 54731 of 2023 (Kapil @ Kafeel). For ready reference, the same is extracted herein under:
"1. Supplementary affidavit has been filed today in the Court, is taken on record.
2. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material on record.
3. The instant bail application has been filed on behalf of the applicant with a prayer to release him on bail in Case Crime No. 276 of 2023, registered under Sections 452, 354, 354-B, 323, 504, 506, 376, 511 I.P.C., Police Station Sikandra Rao, District Hathras during pendency of the trial.
4. Learned counsel for the applicant submitted that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. Applicant is aged about 16 years. FIR was lodged under Sections 452, 323, 354, 354B, 504, 506 I.P.C. but charge sheet has been filed U/s 452, 323, 504, 560, 354, 354-B, 376, 511 I.P.C. Instant FIR has been lodged only to harass the applicant. Statement of victim recorded under Section 161 and 164 Cr.P.C. is itself contradictory and no offence under the alleged sections is made out. Implication of applicant U/s 376 and 511 I.P.C. by the Investigating Officer is without support of any evidence. Criminal history has been explained in para 3 to the supplementary affidavit. There is no prospect of trial of the present case being concluded in near future due to heavy dockets. It is next submitted that there is no possibility of fleeing away of the applicant from the judicial custody or tampering with the witnesses and, in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail. It is also contended that the applicant is languishing in jail since 12.07.2023.
5. Per contra, learned A.G.A. as well as learned counsel for the informant opposed the bail prayer of the applicant.
6. Considering the facts and circumstances of the case, submissions advanced by learned counsel for the parties and the statement of the victim under Sections 161 Cr.P.C. and 164 Cr.P.C., medical report regarding age of the victim and evidence on record regarding complicity of the accused and the view laid down by the Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018) 3 SCC 22 and without expressing any opinion on the merits of the case, the applicant is entitled for bail. The bail application is allowed.
7. Let the applicant- Kapil @ Kafeel, who is involved in the aforesaid case crime, be released on bail on his furnishing a personal bond and two sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions. Further, before issuing the release order, the sureties be verified :-
i. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.
ii. The applicant shall cooperate in the trial sincerely without seeking any adjournment.
iii. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
iv. The applicant shall remain present, in person, before the trial court on the dates fixed. 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.
8. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail."
6. With reference to above, the learned counsel for applicant, contends that the case of present applicant is similar and identical to aforementioned bailed out accused Kapil @ Kafeel. There is no such distinguishing feature on the basis of which, case of present applicant could be so distinguished from but bailed out co-accused so as to deny bail to present applicant. He, therefore, submits that applicant is also liable to be enlarged on bail on the ground of parity.
7. Even otherwise, 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 22.9.2023. As such, he has undergone more than seven months of incarceration. It is thus urged that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with trial. Police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized. However, upto this stage, no such, circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. It is then urged that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with trial.
8. Per contra, the learned A.G.A has opposed this application for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. He submits that trial of applicant has already commenced and prosecutrix has deposed before Court below as P.W.1. Her statement-in-chief is on record as Annexure- S.A-1 to the supplementary affidavit dated 5.5.2024. The learned A.G.A. has invited attention of the Court to the deposition of P.W.1 and on basis thereof, he submits that prosecutrix in her deposition before Court below has fully supported the F.I.R. The criminality alleged against the named accused is joint and common inasmuch as the same is interlinked and intertwined, therefore the same is incapable of separation or segregation. On the above conspectus, the learned A.G.A. contends that since prosecutrix in her deposition before Court below has fully supported the F.I.R., no exception can be carved out in the case of present applicant. He, therefore, submits that this repeat applicant for bail is liable to be rejected.
9. When confronted with above, the learned counsel for applicant could not overcome the same.
10. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, as well as complicity of applicant, accusations made and coupled with the fact that the prosecutrix in her deposition before Court below has fully supported the F.I.R. therefore, irrespective of the varied submissions urged by learned counsel for applicant in support of the present application for bail, but without making any comment on the merits of the case, this Court does not find any good ground to enlarge the applicant on bail.
11. In view of above, the application fails and is liable to be rejected.
12. It is accordingly rejected.
Order Date :- 03.07.2024 Vinay