Allahabad High Court
Brijesh vs State Of U.P. on 7 August, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:127344 Court No. - 64 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26881 of 2024 Applicant :- Brijesh Opposite Party :- State of U.P. Counsel for Applicant :- Atul Pandey Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Atul Pandey, 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-Brijesh, seeking his enlargement on bail in Case Crime No. 325 of 2023, under Section 376 IPC, Police Station-Bilsanda, District-Pilibhit during the pendency of trial i.e. Sessions Trial No. 1380 of 2023 (State Vs. Brijesh), under Section 376 IPC, Police Station-Bilsanda, District-Pilibhit now pending in the Court of Sessions Judge, Pilibhit.
5. The first bail application of applicant was rejected by this Court, vide order dated 06.12.2023 passed in Criminal Misc. Bail Application No. 48488 of 2023 (Brajesh Vs. State of U.P.). For ready reference, the order dated 06.12.2023 is reproduced herein under:-
"1. Heard Mr. Kuldeep Johri, the learned counsel for applicant and the learned A.G.A. for State.
2. Perused the Court.
3. This application for bail has been filed by applicant-Shivlal seeking his enlargement on bail in Case Crime No. 325 of 2023 under Section 376 I.P.C., Police Station-Bilsanda, District- Pilibhit, during the pendency of trial.
4. Record shows that an F.I.R. dated 19.08.2023 was lodged by first informant Geeta Devi i.e. prosecutrix and was registered as Case Crime No. 325 of 2023 under Section 376 I.P.C., Police Station-Bilsanda, District- Pilibhit. In the aforesaid F.I.R. applicant-Brajesh has been nominated as solitary named accused.
5. The gravamen of the allegations made in the F.I.R. is to the effect that named accused by extending false promise of marriage repeatedly and continuously dislodged the modesty of the prosecutix. The F.I.R. concludes with the recital that applicant ultimately refused to solemnize marriage with the prosecutrix and thus resiled from the promise so extended by him to her.
6. After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. Statement of the prosecutrix was recorded under Section 161 Cr.P.C., which is on record at page 27 of the paper book. The prosecutrix in her aforesaid statement has fully supported the F.I.R. Subsequently, the prosecutrix was requested for her internal medical examination but the same was refused by her. Thereafter the statement of the prosecutrix was recorded under Section 164 Cr.P.C.. The prosecutrix in her aforesaid statement has reiterated her earlier statement under Section 161 Cr.P.C. with better particular and details.
7. During course of investigation, Investigating Officer examined first informant and other witnesses namely, Himanshu, Needesh, Gayatri Devi and Smt. Raj Kumari under Section 161 Cr.P.C. Witnesses so examined have substantially supported the F.I.R. On the basis of above and other material collected by him during course of investigation, he came to the conclusion that complicity of applicant is established in the crime in question. He accordingly submitted the charge-sheet dated 14.09.2023 whereby applicant has been charge-sheeted under Sections 376 I.P.C. .
8. Learned counsel for applicant submits that though the applicant is a named as well as charge sheeted accused yet he is liable to be enlarged on bail. The prosecutrix is major. She is a willing and consenting party. There is delay in lodging the F.I.R. inasmuch as the date of occurrence/occurrences has not been mentioned in the body of F.I.R. nor in the day, date and time in the Column of the F.I.R. Even otherwise, there is no false promise of marriage as alleged in the F.I.R. as nothing false which is from inception is alleged to have been disclosed by the applicant. On the above conspectus, it is urged that applicant is liable to be enlarged on bail.
9. 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 custody since 30.08.2023. As such he has undergone more than three months of incarceration. The police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has been submitted against applicant, therefore the entire evidence sought to be relied upon by the prosecution against applicant stands crystallised. Upto this stage, no such circumstance has emerged on the record necessitating the custodial arrest of applicant during the pendency of trial. He therefore contends 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.
10. Per contra, the learned A.G.A. for State has opposed the prayer for bail. He submits that since the applicant is a named as well as charge-sheet accused, therefore he does not deserve any indulgence by this Court. The issue as to whether any false promise of marriage was made by applicant or not is a question of fact which can be more appropriately decided during the course of trial. He further submits that as per the scheme of the Code of Criminal Procedure, the statement under Section 164 Cr.P.C. has to be given preference over the statement under Section 161 Cr.PC. The prosecutrix in her said statement has clearly implicated the applicant in the crime in question on the false promise of marriage. He submits that in view of above and the law laid down by Apex Court in the following judgments:-(i). Sonu alias Subhash Kumar Vs. State of U.P., 2021 SCC OnLine SC 181, (ii). Pramod Suryabhan Pawar Vs. State of Maharashtra, 2019 SCC OnLine SC 1073, (iii). Maheshwar Tigga Vs. State of Jharkhand (2020) 10 SCC 108, (iv). Mandar Deepak Pawar Vs. State of Maharashtra and Another, 2022 Live Law, SC 649 (v). Naim Ahmed Vs. State (NCT of Delhi), 2023 SCC OnLine SC 89, the applicant does not deserve to be enlarged on bail. The prosecutrix is a young girl aged about 22 years whose life has been ruined by applicants.
11. On the above premise, the learned A.G.A. submits that since the applicant is guilty of dislodging the modesty of prosecutrix and subsequently refusing to marry her, therefore, no sympathy be shown by this Court in favour of applicant. On the cumulative strength of above, he submits that present application for bail is liable to be rejected by this Court.
12. When confronted with above, the learned counsel for applicant could not over come the same.
13. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant coupled with the fact that the learned counsel for applicant could not dislodge the objections raised by the learned A.G.A. in opposition of the present application for bail, therefore irrespective of the varied submissions urged by the learned counsel for applicant in support of present application for bail this Court, this Court does not find any good or sufficient ground to enlarge the applicant on bail.
14. As a result, present application for bail fails and is liable to be rejected.
15. It is accordingly rejected."
6. Learned counsel for applicant contends that the charge sheet was submitted against applicant on 14.09.2023. After submission of aforementioned charge sheet, cognizance was taken upon same by concerned Magistrate in exercise of jurisdiction under Section 190(1)(b) Cr.P.C. Since offence complained of is triable exclusively by Court of Sessions, therefore, concerned Magistrate in compliance of Section 209 Cr.P.C. committed the case to the Court of Sessions. Resultantly, Sessions Trial No. 1380 of 2023 (State Vs. Brijesh), under Section 376 IPC, Police Station-Bilsanda, District-Pilibhit came to be registered.
7. The concerned Sessions Judge, in compliance of Section 211 Cr.P.C. framed charges against applicant. It was denied by applicant and he demanded trial. However, in spite of the fact that a period of 9 months has rolled by since framing of charge order passed by Court below, the prosecutrix has not yet appeared before Court below for getting her statement recorded. It was on account of aforesaid submission urged by the learned counsel for applicant on the previous occasion that the learned A.G.A. was granted time to obtain instructions in the matter.
8. On the matter being taken up today, the learned A.G.A. fairly submits that the prosecutrix has not yet deposed before Court below for getting her statement recorded.
9. On the above premise, the learned counsel for applicant contends that liberty of applicant cannot be jeopardized on account of lackadaisical approach of the prosecution in pursuing the trial. Since applicant is in custody since 30.08.2023, therefore, he cannot be held responsible for the delay in the progress of trial. Attention of the Court was invited to the judgment of Supreme Court in A.R. Antulay Vs. R.S. Nayak, 1992 (1) SCC 225 and on basis thereof, it is urged by the learned counsel for applicant that right to speedy trial is now recognized as fundamental right of an accused. Since on account of indifferent attitude of the prosecution in pursuing the trial, the aforesaid right of applicant stands infringed, therefore, applicant is liable to be enlarged on bail.
10. 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 30.08.2023. As such, he has undergone more than 11 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 incriminating circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. On the above premise, the learned counsel for applicant 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.
11. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named and charge sheeted accused, therefore, he does not deserve any indulgence by this Court. Applicant is guilty of dislodging the modesty of the prosecutrix by repeatedly committing rape upon her on the false promise of marriage. As such, no sympathy be shown by this Court in favour of applicant. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.
12. 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 submissions urged by the learned counsel for applicant in support of this repeat application for bail as noted herein above, could not be dislodged by the learned A.G.A. with reference to the record at this stage, the clean antecedents of applicant, the period of incarceration undergone, 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 the prosecution against applicant stands crystallized, yet in spite of above, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, the judgment of the Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), therefore, irrespective of the objections raised by the learned A.G.A. in opposition to this repeat application for bail but without making any comment on the merits of the case, applicant has made out a case for bail.
13. Accordingly, this repeat application for bail is allowed.
14. Let the applicant-Brijesh, be released on bail in the aforesaid case crime number 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/SHE 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 APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) THE APPLICANT 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 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 THE HIM/HER 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 APPLICANT.
15. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his 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 the condition mentioned above.
Order Date :- 7.8.2024 Vinay