Allahabad High Court
Baijnath And Another vs State Of U.P. on 16 November, 2022
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 71 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46463 of 2022 Applicant :- Baijnath And Another Opposite Party :- State of U.P. Counsel for Applicant :- Pramod Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Manish Mathur,J.
1. Heard learned counsel for applicants, learned Additional Government Advocate appearing on behalf of State and perused the record.
2. This first bail application has been filed with regard to Case Crime No. 527 of 2018 under Section 376-D, 504, 506 IPC, P.s. Meja, District Prayagraj.
3. As per contents of FIR, incident is said to have taken place on 25th August, 2018 at about 4.00 A.M. when the informant/prosecutrix had gone to fields to relieve herself. It is alleged that the applicants and co-accused were already present at the place and caught hold of the prosecutrix and tried to rape her but she was saved by her husband and other family members.
4. Learned counsel for applicants submits that the applicants have been falsely implicated in the charges levelled against them which would be amply proved from the fact that neither in the F.I.R. nor even in the statement of prosecutrix under Section 161 Cr.P.C. has any allegation of rape been made and the story has been improved only in the statement recorded under Section 164 Cr.P.C. It is submitted that the prosecutrix has refused to get herself medically examined. It is submitted that therefore there is neither any direct nor circumstantial evidence available against the applicants who are in jail since since 30th July, 2022 with charge sheet having been filed.
5. Learned A.G.A. appearing on behalf of State has opposed bail application with the submission that external medical examination of prosecutrix clearly indicates injuries upon the body of prosecutrix which corroborates with the allegations which have been levelled.
6. Considering submissions advanced by learned counsel for parties and upon perusal of material on record, prima facie subject to evidence led in trial, it appears that statement of prosecutrix under Section 164 Cr.P.C. alleging rape is not in conformity with the allegations levelled in the F.I.R. or even in her material statements made under Section 161 Cr.P.C. It is also material that the prosecutrix refused to get herself medically examined. The applicants are in jail since 30th July, 2022 without trial having yet commenced.
7. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :-
"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."
"27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."
8. Looking to the nature of allegations levelled against the applicants and submission made in the bail application, without expressing any opinion on the merits of case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, particularly since no reasonable apprehension of tampering with the witnesses has been alleged, prima facie, this Court finds, the applicants are entitled to be released on bail in this case.
9. Accordingly bail application is allowed.
10. Let applicants Baijnath and Laxman Kumar 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 applicants shall file an undertaking to the effect that they 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 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 of the Indian Penal Code.
(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. is issued and the applicants fail 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 applicantd 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 them in accordance with law.
Order Date :- 16.11.2022 Prabhat