Allahabad High Court
Kapil Alias Shainki Tyagi vs State Of U.P. And Another on 8 February, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 93 Case :- CRIMINAL APPEAL No. - 7626 of 2022 Appellant :- Kapil Alias Shainki Tyagi Respondent :- State of U.P. and Another Counsel for Appellant :- K.K.Rao Counsel for Respondent :- G.A.,Girijesh Kumar Gupta,Shiv Shankar Pd Gupta Hon'ble Surendra Singh-I,J.
Heard Shri K.K. Rao, learned counsel for the appellant, Shri G.K. Gupta, Advocate appearing on behalf of opposite party no. 2, learned A.G.A. appearing on behalf of the State and perused the material available on record.
Learned A.G.A. for the State has filed a counter affidavit today in Court. It is taken on record.
The present criminal appeal under Section 14-A(2) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been filed against the order dated 26.09.2022 passed by the Additional Sessions Judge/ Special Judge (SC/ST) Act, Hapur, whereby the learned Judge has rejected the appellant's Bail Application No. 2715 of 2022 arising out of Case Crime No. 715 of 2022, under Sections 323, 376, 504, 506 I.P.C. and Section 3(2)(v) of SC/ST Act, Police Station Hapur Nagar, District Hapur.
According to the prosecution case, the informant/victim, aged 26 years, is a divorcee and has a son, named Jatin from her previous husband. She met with the appellant, Kapil Tyagi alias Shainki Tyagi r/o Rajeev Enclave, Gali No. 2, Police Station Hapur. The appellant, on the assurance of marriage, had sexual relationship with the victim for one year. When the victim/informant asked the appellant to marry her, he did not pay heed to her and hurled abuses. On 20.07.2022 at 5 p.m. the appellant came to the victim/informant's house and tried to make sexual relationship forcibly and on being resisted by the victim, he beat her, dragged her onto the road and hurled castiest abuses. The appellant threatened the victim/informant to dire consequences and to kidnap and kill her son, in case she lodge any complaint or FIR against him.
It is submitted by learned counsel for the appellant that the appellant is innocent and has been falsely implicated in the present case due to ulterior motive. It is submitted that the appellant and the victim were in a consensual relationship. It is submitted that the appellant had not obtained divorce from her wife and the victim was aware about this fact that he could not marry her. It is submitted that the victim/informant stayed as a tenant for one year in the house of the appellant and she used to pay rents to the appellant's mother and brother. She had full knowledge that the appellant is married and has not obtained divorce from his wife. It has also been submitted that the victim in her statement under Section 161 Cr.P.C. has admitted that the appellant used to bear her household expenses including rent of the house. It is fairly submitted that the appellant is a respectable citizen having no criminal antecedents to his credit. It is also submitted that the appellant is in jail since 09.09.2022 and in case he is released on bail he will not misuse the liberty of bail. It is in the last submitted that the appellant is ready to pay Rs. 50,000/- to the victim without admitting the prosecution case.
Per contra, learned counsel for opposite party no. 2 and the learned A.G.A. for the State have opposed the prayer for bail of the appellant stating that the appellant had sexual relationship with the victim under the false assurance of marriage and hence he is not entitled to be released on bail.
Considering the arguments advanced on behalf of the parties, facts and circumstances of the case, nature of the offence, evidence appearing in the case, the fact that the victim stayed in the house where appellant-accused stayed with his wife and other family members for one year, the fact that the evidence of the victim has been recorded in the court, period of detention undergone by the appellant, but without expressing any opinion on the merits of the case, this Court is of the opinion that the appellant has made out a case for bail.
Accordingly, the appeal is hereby allowed. The impugned order dated 26.09.2022 rejecting the bail application of the appellant is hereby set aside.
Let the appellant Kapil alias Shainki Tyagi be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(i) That the appellant will deposit Rs. 50,000/- through a Bank Draft in favour of the victim/informant in the Court, before his release.
(ii) That the Trial Court will hand over the aforesaid Bank Draft to the victim/informant, after proper identification, but without asking any security from her.
(iii) That the appellant shall cooperate in the expeditious disposal of the trial and shall regularly attend the court unless inevitable.
(iv) That the appellant 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.
(v) That after his release, the appellant shall not involve in any criminal activity.
(vi) The identity, status and residential proof of sureties will be verified by court concerned before the release of the appellant on bail.
It is made clear that in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of the appellant.
It is also 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/J.J.Board shall be absolutely free to arrive at its independent conclusion on the basis of evidence led, uninfluenced by any finding or observation whatsoever in this order.
Order Date :- 8.2.2023 Brijesh Maurya