Allahabad High Court
Avinash Gupta Alias Abhinesh Gupta vs State Of U.P. And Another on 22 December, 2022
Author: Sanjay Kumar Pachori
Bench: Sanjay Kumar Pachori
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 65 Case :- CRIMINAL APPEAL No. - 7142 of 2022 Appellant :- Avinash Gupta Alias Abhinesh Gupta Respondent :- State of U.P. and Another Counsel for Appellant :- Akhilesh Kumar Mishra Counsel for Respondent :- G.A. Hon'ble Sanjay Kumar Pachori,J.
Supplementary affidavit filed today, which is taken on record.
Heard Shri Akhilesh Kumar Mishra, learned counsel for the appellant and Shri Virendra Kumar Maurya, learned A.G.A. for the State. Despite service of notice upon respondent no. 2, no one has appeared on behalf of respondent no. 2.
The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant Avinash Gupta @ Abhinesh Gupta to set aside the impugned order dated 29.08.2022 whereby the Special Judge (SC/ST Act), Kushinagar at Padrauna has rejected the bail application No. 1532 of 2022 of the appellant moved by him in Case Crime No. 196 of 2022, under Sections 376, 452, 323 I.P.C. and Section 3(2)(v) of SC/ST Act, Police Station- Kaptanganj, District- Kushinagar.
Brief facts of the case are that the first information report dated 26.06.2022 was lodged by the father of the victim stating that the her daughter aged about 18 years, was residing in the house of her uncle (Mausa) at Basdila @ Amba, the appellant made friendship with his daughter and promised to marry her and made physical relations with her. On the night of 16.06.2022 the appellant entered into the house of the first informant and his son caught the appellant in a compromising position with the victim, whose information he gave to the police on 100 number.
After lodging the first information report, statement of the victim under Section 161 Cr.P.C. was recorded. Medical examination of the victim was conducted on 30.06.2022. Statement of the victim under Section 164 Cr.P.C. was recorded on 04.07.2022. After recording the statements of the other prosecution witnesses, charge sheet had been submitted against the appellant. The appellant was arrested on 07.07.2022.
Learned counsel for the appellant submits that the appellant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that as per allegation of the first information report, the appellant committed rape with his daughter on the pretext of false promise of marriage. It is further submitted that on 16.06.2022, the appellant made physical relations with his daughter in her house. It is further submitted that as per statement of the victim, wherein she stated that she known to the appellant for two years and she is illiterate. It is further submitted that there is material contradiction between the statements of the victim recorded under Sections 161 and 164 of Cr.P.C., firstly she stated that the appellant made physical relations with her on the pretext of false promise of marriage for two years. Secondly, he stated that on 19.06.2022 he entered her house at 11.00 p.m. and forced him to have physical relations with her and made physical relations with her.
It is further submitted that the appellant is languishing in jail since 07.07.2022. The appellant has no criminal history.
It is further submitted that there is no possibility of the appellant of fleeing away after being released on bail or tampering with the witnesses. In case the appellant is enlarged on bail, he shall not misuse the liberty of bail.
Per contra, learned A.G.A. has supported the order passed by the Special Judge and vehemently opposed the prayer for grant of bail to the applicant. But he could not point out any material to the contrary. He further submits that in case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.
After considering the facts of the present case it prima facie appears that;
(a) As per ossification test report dated 02.07.2022, victim was 18 years old at the time of examination, which is paper book no. 45 of the paper book;
(b) There is material contradiction between the statement of the victim recorded under Sections 161 and 164 of Cr.P.C., it would not be appropriate to discuss the same at this stage;
(c) The appellant is languishing in jail since 07.07.2022;
It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.
Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present criminal appeal is allowed and impugned order dated 29.08.2022 is set aside.
Let appellant/applicant, Avinash Gupta @ Abhinesh Gupta be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:
(i) The applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.
(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.
(iii) 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 of Cr.P.C.
(iv) 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 the trial court.
(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.
(vi) 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. If in the opinion of the trial court that 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 in accordance with law.
The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the applicant, if there is no other legal impediment.
It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant along-with a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked ;
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 :- 22.12.2022 Ishan