Allahabad High Court
Madhuri @ Radhey Shyam vs State Of U.P Thru Secretary Home Lknw. ... on 7 April, 2022
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 51833 of 2021 Applicant :- Madhuri @ Radhey Shyam Opposite Party :- State Of U.P Thru Secretary Home Lknw. And 3 Others Counsel for Applicant :- Garun Pal Singh Counsel for Opposite Party :- G.A. AND Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35375 of 2021 Applicant :- Ashok Sharma Opposite Party :- State of U.P. Counsel for Applicant :- Vandana Gupta,Ashutosh Gupta Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Garun Pal Singh, learned counsel for applicant- Madhuri @ Radhey Shyam and Mr. Ashutosh Gupta, learned counsel for applicant- Ashok Sharma and learned A.G.A. for State.
2. Perused the record.
3. These applications for bail have been filed by applicants- Madhuri @ Radhey Shyam and Ashok Sharma seeking their enlargement on bail in Case Crime No. 334 of 2018, under Sections 363/34, 376D, 328 I.P.C. and Sections- 5/6 POCSO Act, Police Station- Goverdhan, District- Mathura, during pendency of Special Sessions Trial No.3699 of 2018 (State Vs. Ashok and Others) under Section 376D I.P.C. and Sections- 3/4 POCSO Act, Police Station- Goverdhan, District- Mathura.
4. Record shows that in respect of an incident, which is alleged to have occurred on 31.05.2018, a delayed F.I.R. dated 02.06.2018 was lodged by first informant- Bunty Singh (brother of the prosecutrix) was registered as Case Crime No. 334 of 2018, under Sections 363, 328, 376D, 120B I.P.C. and Sections- 3/4 POCSO Act, Police Station- Goverdhan, District- Mathura. In the aforesaid F.I.R., 8 persons, namely, Rinki, Akash, Mano, Satyaveer, Yogesh, Rohtas, Ashok and Madhuri have been nominated as named accused.
5. After completion of investigation of aforementioned case crime number, Investigating Officer ultimately submitted a charge-sheet dated 15.12.2018, whereby six of the named accused have been charge-sheeted, whereas two of the named accused namely, Madhuri @ Radhey Shyam and Yogesh have been exculpated.
6. After submission of aforementioned charge-sheet, cognizance was taken upon same by court concerned. Resultantly, Sessions Trial No. 3699 of 2018 (State Vs. Ashok and Others) came to be registered. During the course of trial, P.W.1 Deepika (prosecutrix) and P.W.2 Bunty Singh (first informant) were examined. On the basis of statements of aforesaid witnesses, prosecution filed an application under section 319 Cr.P.C. (which was registered as Paper No. 34ka) to summon present applicants to face trial. Ultimately, court concerned, vide order dated 20.12.2020 allowed the aforesaid application. Consequently, applicant- Madhuri @ Radhey Shyam, who is not a charge-sheeted accused, has been summoned in aforementioned sessions trial by court below, vide summoning order dated 20.11.2020.
7. Mr. Garun Pal Singh, learned counsel for applicant- Madhuri @ Radhey Shyam contends that applicant is a named accused, but she is innocent. However, during the course of investigation, Investigating Officer did not find complicity of the applicant in the crime in question. Resultantly, she was exculpated. However, subsequently, on the statement of victim and first informant as recorded before trial court, applicant has been summoned to face trial in aforementioned sessions trial. The deposition of P.W.1 and P.W.2 is almost similar to their statements as recorded under section 161 Cr.P.C. As such, no new material has come against applicant during the course of trial. It is next contended that except Ashok Sharma, all the other five charge-sheeted accused have been granted bail by this Court. Copy of the bail orders have been appended collectively as Annexure-8 to the affidavit. The details of the same are as under:-
Case :- CRIMINAL MISC. 2nd BAIL APPLICATION No. - 28842 of 2019 (vide order dated 22.08.2019) Heard Sri Pankaj Kumar Shukla, learned counsel for the applicant and Sri Rajesh Mishra, learned AGA appearing for the State.
This bail application moved on behalf of applicant praying to enlarge the applicant on bail in Case Crime No.334 of 2018, under Sections 376-D, 328, 363, IPC, and Section 5/6, 16/17 of the Protection of Children from Sexual Offence Act, 2012, Police Station Goverdhan, District Mathura.
This is the second bail application moved on behalf of the applicant. The first bail application was rejected on 03.07.2019.
The contention of the leaned counsel appearing for the applicant is that subsequent to the rejection of the first bail application of the applicant, the victim herself has been examined as P.W.-1. I have perused the said statement of the P.W.-1 the victim, copy of which has been annexed on page no.16 to the bail present second application, contents of which is self explicit. The applicant is a woman. The applicant is in jail since 05.10.2018 with no previous criminal history.
Learned AGA appearing for the State opposed the prayer for bail, but could not dispute the aforesaid facts as argued by the learned counsel for the applicant.
Keeping in view the reasons as stated above, the facts and circumstances of the case as have been discussed at the Bar of this Court, without expressing any opinion on the merits of the case, at this stage, prima facie, a case for bail has been made out. However, the said prima facie view of this Court will not in any manner adversely affect the case of the prosecution.
The prayer for bail is granted. The application is allowed.
Let the applicant Smt Rinki involved in the aforesaid case crime number be released on bail on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:
i) The applicant shall not tamper with the prosecution evidence.
ii) The applicant shall not threaten or harass the prosecution witnesses.
iii) The applicant shall appear on the date fixed by the trial court.
iv) The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission, of which applicant is suspected.
v) The applicant shall not directly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade the applicant from disclosing such facts to the Court or to any police officer or tamper with the evidence.
In case of default of any of the conditions enumerated above, the learned counsel for the complainant is free to move an application for cancellation of bail before this Court.
However, looking to the period of detention of the applicant, it is directed that the aforesaid case crime number pending before the concerned court below be decided expeditiously, as early as possible in accordance with Section 309 Cr.P.C. and in view of principle as has been laid down in the recent judgment of Hon'ble Apex Court in the case of Vinod Kumar v. State of Punjab reported in 2015 (3) SCC 220 and Hussain and Another v. Union of India; 2017 (5) SCC 702, if there is no legal impediment.
It is made clear that in case the witnesses are not appearing, the concerned court is directed to initiate necessary coercive measure for ensuring their presence.
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 54420 of 2019 (vide order dated 07.12.2019) Heard learned counsel for the applicant as well as the learned AGA for the State and perused the material placed on record.
The instant bail application has been filed on behalf of the applicant, Mano @ Manveer, with a prayer to release him on bail in Case Crime No. 334 of 2018, under Sections 376-D, 328, 363 IPC and 5/6, 16/17 POCSO Act, Police Station Goverdhan District- Mathura, during pendency of trial.
Submission is that age of the victim, as per medical report, is 18 years. Victim had relationship with co-accused, Ashok and she became pregnant. The applicant has brought on record the extracts of Community Health Centre, Goverdhan, Mathura, wherefrom, it appears that the victim was admitted in CHC by co-accused, Ashok, for treatment, after she took medicine for terminating pregnancy. Co-accused, Ashok, is stated to be brother-in-law of the applicant. The applicant has been falsely implicated in this case alongwith six other co-accuseds on account of being his close relatives. The applicant has no criminal history to his credit and he is languishing in jail since 14.9.2018. In case, the applicant is released on bail, he will not misuse the liberty of bail.
Per contra learned A.G.A. has opposed the prayer for bail of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserves any indulgence. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail.
Having considered the submissions of the parties noted above, larger mandate of the Article 21 of the Constitution of India and 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 without expressing any opinion on the merits of the case, let the applicant involved in the aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions that :-
1. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.
2. The applicant shall cooperate in the trial sincerely without seeking any adjournment.
3. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
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.
The trial court is directed to conclude and decide the trial in the aforesaid case, within a period of one year, from the date of production of certified copy of this order.
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8987 of 2020 (vide order dated 27.02.2020) Heard Sri Kartikey Singh, learned counsel for the applicant, Sri Azad Singh, learned AGA for the State and perused the material brought on record.
It has been contended by the learned counsel for the applicant that the co-accused Mano @ Manveer having similar role has been granted bail by this Court vide order dated 07.12.2019 in Criminal Misc. Bail Application No. 54420 of 2019, a copy of said order has been annexed as Annexure No. 7 to the affidavit filed in support of bail application and the case of the applicant stands on identical footing, hence the applicant is also entitled for bail on the ground of parity. The applicant is in jail since 01.12.2018.
Learned A.G.A. opposed the prayer for bail but could not dispute the aforesaid fact as argued by the learned counsel for the applicant.
Having heard the submissions of learned counsel of both sides, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh v. State of U.P. and another, reported in (2018) 3 SCC 22 and without expressing any view on the merit of the case, I find it to be a case of bail.
Let applicant Rohtas be released on bail in Case Crime No. 334 of 2018, under Sections 363, 328, 376D IPC and Section 5/6, 16/17 POCSO Act, Police Station- Govardhan, 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:-
(i) The applicant will co-operate with the trial and remain present personally on each and every date fixed after release. (ii) The applicant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever. (iii) The applicant will not indulge in any unlawful activities. (iv) The applicant will not misuse the liberty of bail in any manner whatsoever.
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.
The trial Court is directed to expedite the trial of the present case and conclude the same as expeditiously as possible, keeping in view the law laid down by the Apex Court in the case of Alakh Alok Srivastava Vs. Union of India and another reported in AIR 2018 (SC) 2440, if there is no legal impediment.
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11905 of 2020 (vide order dated11.06.2020)
1. Heard Sri Pankaj Kumar Shukla, learned counsel for the applicant and learned AGA for the State.
2. The instant bail application has been filed on behalf of the applicant - Akash with a prayer to release him on bail in Case Crime No. - 334 of 2018, under Sections - 376-D, 328, 363 I.P.C. & 5/6, 16/17 of POCSO Act, Police Station - Goverdhan, District - Mathura, during pendency of trial.
3. At the outset, it has been stated that the applicant has not challenged the order dated 11.09.2019 passed by the Juvenile Justice Board. Further, the main accused is Ashok with whom the applicant claims he has no connection insofar as FIR allegations are concerned. Also, in exact similar allegations, co-accused Rohtas has already been enlarged on bail by this Court in Criminal Misc. Bail Application No. 8987 of 2020, vide order dated 27.02.2020. For the reasons contained in that order, the present applicant is also entitled for bail. Further, it has been submitted that the applicant has no criminal history.
4. This Court in Criminal Misc. Bail Application No. 11973 of 2020 (Vijay Pratap Verma Vs. State of U.P.) has, while enlarging the applicant (in that case) on bail vide order dated 09.04.2020, imposed certain conditions. I am in respectful agreement with the said order and propose to follow the same.
5. In view of the above, without expressing any opinion on the final merits of the case, let the applicant - Akash involved in the aforesaid case crime be released on bail on his 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 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.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) 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.
(iv) 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.
(v) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
(vi) The computer generated copy of such order shall be self attested by the counsel of the party concerned.
(vii) 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.
6. In view of the extraordinary situation prevailing in the State due to Covid-19, the directions of this Court dated 06.04.2020 passed in Public Interest Litigation No. 564 of 2020 (In re vs. State of U.P.) shall also be complied. The order reads thus:
"Looking to impediments in arranging sureties because of lockdown, while invoking powers under Article 226 and 227 of the Constitution of India, we deem it appropriate to order that all the accused-applicants whose bail applications came to be allowed on or after 15th March, 2020 but have not been released due to non-availability of sureties as a consequence to lockdown may be released on executing personal bond as ordered by the Court or to the satisfaction of the jail authorities where such accused is imprisoned, provided the accused-applicants undertakes to furnish required sureties within a period of one month from the date of his/her actual release."
8. On the aforesaid premise, learned counsel for applicants contends that case of applicant- Maduri @ Radhey Shyam is on better footing and she is liable to be enlarged on bail. There is no such distinguishing feature so as to distinguish the case of applicant- Madhuri @ Radhey Shyam from aforesaid accused, who have already been enlarged on bail, so as to deny her bail. It is thus urged that for the facts and reasons recorded in the order of co-accused, applicant- Madhuri @ Radhey Shyam is also liable to be enlarged on bail.
9. It is then contended that applicant is a woman of clean antecedents, inasmuch as, she has no criminal history to her credit except the present one. Applicant is in jail since 29.10.2021. As such, she has undergone more than five months of incarceration. In case, applicant is enlarged on bail, she shall not misuse the liberty of bail and shall co-operate with the trial.
10. It is lastly contended that applicant is a lady and by virtue of the provisions contained in proviso to section 437 Cr.P.C., applicant is liable to be enlarged on bail.
11. Mr. Ashutosh Gupta, learned counsel for applicant- Ashok Sharma has adopted the arguments of Mr. Garun Pal Singh. He further submits that applicant is also a man of clean antecedents, inasmuch as, he has no criminal history to his credit except the present one. Applicant is in jail since 17.07.2018. As such, he has undergone more than 3 years and five 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.
12. Per contra, the learned A.G.A. has opposed the applications for bail. Learned A.G.A. submits that applicants- Madhuri @ Radhey Shyam and Ashok Sharma have been summoned by court below on the basis of statement-in-chief of P.W.1 prosecutrix and P.W.2 first informant. They, therefore, do not deserve any indulgence by this Court. However, learned A.G.A. could not dispute the legal and factual submissions urged by learned counsel for applicants.
13. Having heard learned counsel for applicants, learned A.G.A. for State, upon perusal of record and keeping in view the nature of offence, evidence, complicity of accused and accusations made but without expressing any opinion on the merits of case, applicants have made out a case for bail. Accordingly, bail applications are allowed.
14. Let the applicants, Madhuri @ Radhey Shyam and Ashok Sharma be released on bail in aforesaid case crime number on their furnishing a personal bond and two sureties each in the like amount to the satisfaction of court concerned with the following conditions which are being imposed in the interest of justice:-
(i) THE APPLICANTS SHALL FILE AN UNDERTAKING TO THE EFFECT THAT THEY 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.
(ii) THE APPLICANTS SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH THEIR COUNSEL. IN CASE OF THEIR ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST THEM UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANTS MISUSE THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE THEIR PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANTS FAIL TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST THEM IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) THE APPLICANTS 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 APPLICANTS 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 THEM IN ACCORDANCE WITH LAW.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANTS.
15. However, it is made clear that any wilful violation of above conditions by applicants, shall have serious repercussion on their bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of condition mentioned above.
Order Date :- 7.4.2022 Saif