Allahabad High Court
Jaiky vs State Of U.P. And 3 Others on 17 November, 2022
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 71 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31658 of 2022 Applicant :- Jaiky Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Atmaram Nadiwal,Dinesh Kumar Yadav Counsel for Opposite Party :- G.A.,Avinash Pandey,Saumya Srivastava Hon'ble Manish Mathur,J.
1. Heard learned counsel for applicant, learned counsel for informant and 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. 127 of 2022 under Sections 363 and 376(D) IPC & 5G/6 Protection of Children from Sexual Offences Act, 2012, P.S. Rampur Maniharan, District Saharanpur.
3. As per contents of FIR, co-accused Kushal Pal is said to have enticed away the minor daughter of informant on 18th April, 2022. The applicant has been named in the F.I.R. as having helped the main accused.
4. Learned counsel for applicant submits that the applicant has been falsely implicated in the charges levelled against him. It is further submitted that neither in the F.I.R. nor in the statement of prosecutrix under Section 161 Cr.P.C. has any role been attributed to the applicant in having rape the prosecutrix. In fact the prosecutrix has not named the applicant at all in her statement under Section 161 Cr.P.C. and has made a subsequently improvement in story under Section 164 Cr.P.C. and as such there is material contradiction. It is submitted that medical examination report does not support the prosecution version and main accused Kushal Pal has already been admitted to bail by co-ordinate Bench of this Court in Criminal Misc. Bail Application No. 23635 of 2022. The applicant is in jail since 6th May, 2022 with only charge sheet having been filed.
5. Learned A.G.A. appearing on behalf of State as well as learned counsel for informant have opposed bail application with the submission that prosecutrix has clearly indicated the role of applicant in her statement under Section 164 Cr.P.C.
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 there is material contradiction in the statement of prosecutrix under Sections 161 and 164 Cr.P.C. while no role to the applicant in having caused rape of the prosecutirx has been alleged in the F.I.R. Medical report does not appear to corroborate the charges levelled against him. Main accused Kushal Pal has already been enlarged on bail as indicated herein above.
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 applicant 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 applicant is entitled to be released on bail in this case.
9. Accordingly bail application is allowed.
10. Let applicant Jaiky 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 applicant shall file an undertaking to the effect that he 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 applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails 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 applicant 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 him in accordance with law.
Order Date :- 17.11.2022 Prabhat