Uttarakhand High Court
BA2/102/2021 on 27 July, 2021
Author: Alok Kumar Verma
Bench: Alok Kumar Verma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA
SECOND BAIL APPLICATION NO. 102 of 2021
27TH JULY, 2021
Between:
Ajay Kumar. ...Applicant
and
State of Uttarakhand. ...Respondent
Counsel for the Applicant : Mr. P.C. Petshali.
Counsel for the Respondent : Mr. T.C. Aggarwal, learned
Deputy Advocate General
assisted by Mr. P.S. Uniyal,
learned Brief Holder for the
State.
Hon'ble Alok Kumar Verma,J.
This is the second bail application. The First Bail Application No. 2358 of 2020, "Ajay Kumar vs. State of Uttarakhand" was allowed on 28.06.2021.
2. The applicant is in judicial custody in connection with FIR No. 246 of 2020, registered with Police Station I.T.I., District Udham Singh Nagar for the offence under Sections 326A, 328, 380, 457, 376DA, 511 of I.P.C. and Section 5(g)/6 of the Protection of Children from Sexual Offences Act, 2012 (for short, "the Act, 2012").
23. Heard Mr. P.C. Petshali, learned counsel for the applicant and Mr. T.C. Aggarwal, learned Deputy Advocate General assisted by Mr. P.S. Uniyal, learned Brief Holder for the State through video conferencing.
4. Mr. P.C. Petshali, the learned counsel for the applicant submitted that the applicant is in custody under Section 376DA, however, on 28.06.2021, the applicant was granted bail for the offence punishable under Section 376D of IPC.
5. The whole order dated 28.06.2021, passed in First Bail Application No.2358 of 2020 is reproduced:-
"This bail application has been filed under Section 439 of the Code of Criminal Procedure, 1973 for grant of regular bail in connection with FIR No.246 of 2020, registered with Police Station I.T.I., District Udham Singh Nagar for the offence under Sections 326A, 328, 380, 457, 376D, 511 of I.P.C. and Section 5(g)/6 of the Protection of Children from Sexual Offences Act, 2012.
2. On 20.08.2020 at 17.00 hrs., the informant lodged an FIR against two named and two unnamed persons alleging therein that in the intervening night of 19/20-8-2020, the co- accused Mohit alias Golu and the co-accused Mayank Sharma alias Pandit along with two other persons entered in her house. They had made her husband and her daughter (victim) unconscious by giving them some intoxicant and 3 had raped her daughter. When her daughter became conscious, she disclosed the whole incident. During the course of the investigation, co-accused persons Mohit alias Golu and Mayank Sharma alias Pandit were arrested. The name of the present applicant has come in the statements of these two co-accused persons. The present applicant was arrested on 21.08.2020, and on the pointing out of all the accused persons, including the present applicant, a bottle of chemical and a cloth, used in commission of crime, were recovered from the back of the house of the victim. The statements of the victim, a student of Class XI, were recorded. After completion the investigation, charge-sheet is filed.
3. Heard Mr. P.C. Petshali, learned counsel for the applicant and Mr. V.S. Rathore, learned A.G.A. for the State through video conferencing.
4. Mr. P.C. Petshali, the learned counsel for the applicant submitted that the applicant has been implicated in this matter; he is not named in the FIR; the statements of the alleged victim were recorded under Sections 161 and 164 of the Code of Criminal Procedure, however, she has not made any such statement in her statements that the present applicant has also caused the incident; she has not named the present applicant among those who caused the incident; the said recovery is false; there was no independent witness at the time of said 4 recovery; the presence of brother of the victim at the site of the alleged recovery is also doubtful; the alleged recovered chemical was sent to the Forensic Science Laboratory, but, after giving sufficient opportunity to the learned counsel appearing for the State to file the report of the Forensic Science Laboratory, no report has been filed; no Test Identification Parade is conducted; the applicant is a resident of District Nainital; he has no criminal history; he is in custody since 21.08.2020; a co-accused of identical role has been granted bail by this High Court and charge-sheet has already been filed, therefore, there is no chance of tampering with the evidence.
5. Mr. V.S. Rathore, the learned A.G.A. appearing for the State opposed the bail application. However, he conceded that the victim has not named the present applicant among those who caused the incident and no Test Identification Parade was conducted. He also admitted that no report has been received from the Forensic Science Laboratory and the applicant has no criminal history.
6. Bail is the rule and committal to jail is an exception. Refusal of bail is a restriction on the personal liberty of the individual, guaranteed under Article 21 of the Constitution of India. The object of keeping the accused person in detention during the trial is not punishment. The main purpose is manifestly to secure the attendance of the accused.5
7. Having considered the submissions of learned counsel for both the parties and in the facts and circumstances of the case, there is no reason to keep the applicant behind the bars for an indefinite period, therefore, without expressing any opinion as to the merit of the case, this Court is of the view that the applicant deserves bail at this stage.
8. The bail application is allowed.
9. Let the applicant be released on bail on his executing a personal bond and furnishing two reliable sureties, each in the like amount, to the satisfaction of the court concerned with the following conditions :-
i) The applicant shall attend the trial court regularly and he shall not seek any unnecessary adjournment;
ii) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of this case.
10. It is clarified that if the applicant misuses or violates any of the conditions, imposed upon him, the prosecution will be free to move the court for cancellation of bail.
11. The informant be informed that the applicant Ajay Kumar has been granted bail and 6 a copy of this bail order be provided to her through registry of this Court forthwith."
6. Mr. T.C. Aggarwal, the learned Deputy Advocate General for the State opposed the bail application. However, he fairly conceded that the facts are the same, which were on 28.06.2021, the date on which above mentioned bail application was allowed by this Court.
7. Having considered the submissions of the learned counsel for the parties and in the facts and circumstances of the case, it is directed that the applicant Ajay Kumar be released on bail in connection with FIR No. 246 of 2020, registered with Police Station I.T.I., District Udham Singh Nagar for the offence under Section 326A, 328, 380, 457, 376DA, 511 of IPC and Section 5(g)/6 of the Protection of Children from Sexual Offences Act, 2012 as per terms of the order dated 28.06.2021, passed in First Bail Application No. 2358 of 2020, "Ajay Kumar vs. State of Uttarakhand".
8. The Second Bail Application No. 102 of 2021 is disposed of accordingly.
___________________ ALOK KUMAR VERMA, J.
Dt: 27th July, 2021 JKJ/Neha