Allahabad High Court
Arvind Yadav vs State Of U.P. And 3 Others on 16 October, 2024
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:164391 Court No. - 80 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 56295 of 2023 Applicant :- Arvind Yadav Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ram Kishor Gupta,Shiv Shankar Gupta Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
1. Heard Sri Shiv Shankar Gupta, learned counsel for the applicant, Sri Birendra Pratap Singh, learned counsel for the State and perused the material on record.
2. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant-Arvind Yadav, seeking enlargement on bail during trial in connection with Case Crime No. 62 of 2021, under Sections 376, 506 I.P.C. and 4 POCSO Act, registered at Police Station Muskara, District Hamirpur.
3. This is a third bail application. The first bail application of the applicant was rejected by this Court vide order dated 30.09.2021 passed in Criminal Misc. Bail Application No. 28790 of 2021. Subsequently the second bail application of the applicant was rejected by this Court vide order dated 22.11.2022 passed in Criminal Misc. Bail Application No. 21057 of 2022.
4. Notice was issued to the first informant vide order dated 18.1.2024. As per office report dated 26.2.2024, notice has been served upon the first informant personally but no one appears on behalf of first informant despite service of notice.
5. The report of the trial court was called for by this Court vide order dated 7.5.2024. The office through its report dated 15.7.2024 has placed a report of the trial court concerned. Perusal of which would go to show that four witnesses have been examined and dates are being fixed for examination of other witnesses. It cannot be said that trial is not in progress.
6. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that this is a third bail application and till date only four witnesses have been examined although thirteen witnesses in all have to be examined. The applicant is in jail since 30.3.2021. Since the victim has been examined as P.W.2 before the trial court, now there are no chances of tempering with evidence of star witness. Looking to the said fact, applicant be released on bail.
7. Per contra learned counsel for the State vehemently opposed the prayer for bail and argued that the first bail application of the applicant was rejected by this Court vide order dated 30.9.2021. Subsequently the second bail application of the applicant was again rejected by this Court vide order dated 22.11.2022 and the trial was expedited by the said order. It is argued that the victim while being examined as P.W.2 has supported the prosecution case and has assigned the role of rape being committed by the applicant on her. Since the trial is in progress and the applicant has been assigned the specific role of rape upon the victim who is a minor, the bail application of the applicant be rejected.
8. After hearing the counsel for the parties and perusing the record, it is evident that the first bail application of the applicant was rejected by this Court vide order dated 30.9.2021, the said order reads as under:-
"Heard Sri Dharm Singh Paramar, learned counsel for the applicant, Sri U.P. Singh, learned counsel for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant-Arvind Yadav, seeking enlargement on bail during trial in connection with Case Crime No.62 of 2021, under Sections 376, 506 I.P.C. and Section 4 Protection of Children from Sexual Offences Act, 2012, registered at Police Station Muskara, District Hamirpur.
Notice was issued to opposite party no.2 vide order dated 06.08.2021. As per office report dated 28.09.2021, report of the Chief Judicial Magistrate, Hamirpur has been received which has been perused by the Court. From the perusal of the said report dated 01.09.2021 of Chief Judicial Magistrate, Hamirpur, it is apparent that the notice has been served personally to opposite party no.2 but no one appears on behalf of opposite party no.2.
The prosecution case as per FIR lodged on 28.03.2021 by the first informant Jairam Yadav naming the applicant and Smt. Sadhna, the wife of the applicant is that the sister of the first informant aged about 17 years was taken by the applicant and his wife for doing work in the field where at about 3 p.m., the applicant with the help of his wife committed rape upon the prosecutrix. Both the accused have threatened her of dire consequences. The prosecutrix then came to the house at 6 p.m. and informed him the entire incident. Thus the present FIR is lodged.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the entire prosecution case is a false case. No such incident took place. The prosecutrix is a mentally retarded girl. The statement of the prosecutrix recorded under Section 161 Cr.P.C. and 164 Cr.P.C. are tutored statements just for the purposes of false implication of the applicant. It is argued that the prosecution story as narrated is completely improbable as the wife of the applicant stated to have helped the applicant in committing rape which is an improbable situation. It is argued that the implication of the applicant is on the basis of malafide intentions. It has also been pointed out that the applicant is not having any criminal history as stated in para 22 of the affidavit and is in jail since 30.03.2021.
Per contra learned counsel for the State vehemently opposed the prayer for bail and argued that the prosecutrix is a minor girl aged about 16 years as per the school records. She has stated in her statement recorded under Section 161 Cr.P.C. and 164 Cr.P.C. that the applicant committed rape on her. There is an allegation against the applicant of committing rape on the prosecutrix.
After hearing the counsel for the parties and perusing the record, it is apparent that the applicant is named in the FIR, in statement of the prosecutrix recorded under Section 161 Cr.P.C. and 164 Cr.P.C. and there is allegation of committing rape on the prosecutrix. The prosecutrix is a minor girl aged about 16 years as per the school records.
Looking to the facts and circumstances of the case, I do not find it a fit case for bail, hence, the bail application is rejected.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
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. "
9. Subsequently the second bail application of the applicant was rejected by this Court vide order dated 22.11.2022, the said order reads as under:-
"List revised.
Heard Sri Ram Kishor Gupta, learned counsel for the applicant and Sri Raj Kumar Gupta, learned counsel for the State and perused the material on record.
Sri Sanjeev Kumar Saxena and Sri Raj Narayan, learned counsels for the first informant are not present even when the matter is taken in the revised list.
Learned counsel for the applicant has provided to the Court a mention slip served on Sri Sanjeev Kumar Saxena intimating him that the matter is listed today. The same is taken on record.
Despite the same no one appears on behalf of the first informant.
This is second bail application of the applicant.
The first bail application of the applicant was rejected by this Court vide order dated 30.09.2021 passed in Criminal Misc. Bail Application No. 28790 of 2021 (Arvind Yadav vs. State of U.P. and another).
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicants- Arvind Yadav, seeking enlargement on bail during trial in connection with Case Crime No. 62 of 2021, under Sections 376, 506 I.P.C. and 4 POCSO Act, registered at Police Station Muskara, District Hamirpur.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued while placing paragraph 3, 4, 5 & 6 of supplementary affidavit dated 29.09.2022 that the date of birth of the victim as per the Delivery Certificate is shown to be 20.01.2002 and as such she was a major at the time of the incident. It is argued that the same is a new fact to be considered by the Court. No other point has been argued and placed. The applicant is in jail since 30.03.2021.
Per contra, learned counsel for the State vehemently opposed the prayer for bail and argued that the first bail application of the applicant has been rejected by a detailed order by this Court on 30.09.2021. It is argued that the said document as is being placed before the Court is not a document which has been subjected to investigation. It is further argued that as per the school leaving certificate of class-8th of the victim the date of birth mentioned therein is 15.03.2005 and as such she was a minor. The same was also found during investigation. It is further argued that in the present case trial has started in which the statement of witnesses have been recorded and as such release of the applicant at this stage will not be in the fitness of things.
After having heard the learned counsel for the parties and perusing the record, it is evident that the first bail application of the applicant was rejected by a detailed order passed by this Court. The date of birth of the victim as is being claimed now through the supplementary affidavit is not subject matter of investigation. The trial is continuing. The release of the applicant at this stage may have an adverse effect in trial.
Accordingly, the bail application is rejected.
However, it is directed that the trial of the aforesaid case pending before the concerned trial court be concluded, as expeditiously as possible, strictly in accordance with Section 309 Cr.P.C. and in view of the principles as has been laid down in the judgement of Apex Court in the cases of Shailendra Kumar Vs. State of Bihar: (2002) 1 SCC 655; Vinod Kumar Vs. State of Punjab: (2015) 3 SCC 220, Hussain and Another Vs. Union of India: (2017) 5 SCC 702, Rajesh Yadav Vs. State of U.P. : Criminal Appeal No. 339-340 of 2014 (decided on 04.02.2022) and the order dated 30.09.2022 passed in Special Leave Petition (Criminal) Diary No:- 8905 / 2022: Mukesh Singh Vs. The State of Uttar Pradesh and another), subject to any legal impediment."
10. The trial is under progress in which four witnesses have been examined. The victim while being examined as P.W.2 has supported the prosecution case and has specifically stated of the applicant of committing rape upon her. There is nothing in the said statement which goes to exonerate the applicant.
11. Looking to the facts and circumstances of the case, I do not find it a fit case for bail, hence, the bail application is rejected.
12. The trial of the present matter has been expedited vide order dated 22.11.2022. The applicant may file an application before the trial court within a period of two weeks bringing on record this order and the said order for needful of the trial court.
(Samit Gopal, J.) Order Date :- 16.10.2024 Gaurav Kuls