Allahabad High Court
Kirandeep vs State Of U.P. on 4 May, 2018
Equivalent citations: AIRONLINE 2018 ALL 2148
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 54 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 16346 of 2018 Applicant :- Kirandeep Opposite Party :- State Of U.P. Counsel for Applicant :- Manish Tiwary,Krishna Dutt Tiwari Counsel for Opposite Party :- G.A. Hon'ble Rahul Chaturvedi,J.
Counter affidavit filed by the learned counsel for the complainant today is taken on record.
Heard learned counsel for the applicant, learned AGA for the State and perused the material on record.
By means of this application, the applicant who is involved in case crime no. 757 of 2014, under Sections 420 and 376 IPC, P.S. Civil Lines, District Moradabad is seeking enlargement on bail during the trial.
Learned counsel for the applicant submitted that the FIR for the incident came into existence by the victim herself in the year 2014 as case crime no. 757 of 2014 under Section 420, 376 IPC, P.S. Civil Lines, District Moradabad, through 156(3) Cr.P.C. application. The allegation made by the informant-victim that she was subject of ditch and misrepresentation by the applicant. She is a widow lady having two grown up daughters, her husband died on 20.03.2007 and an advertisement was floated by her family members for her marriage. Responding to this advertisement, the applicant who at relevant point of time working as Senior Lecturer in Malaysia, a divorcee, got interested and responded to the advertisement. Both of them came into contact with each other and after long drawn of conversation between the parties, the informant got ready to marry with the applicant. A promise was made by the applicant that he would marry and settled in India permanently after his tenure is over at Malaysia. It is further submitted that the applicant himself is aged man of 65 years.
On this promise made by the applicant lady as alleged in FIR surrendered before her and established a physical relationship prior to the marriage and both of them started living as husband and wife. It is submitted by the counsel that all action by the parties were spontaneous act, there was no pressure or force from either of the parties. The lady visited Malaysia in the year 2010, 2011 and 2012 respectively at the expenses of the applicant. It is borne out from the FIR that at Malaysia, she might have observed something objectionable and abnormal as applicant was having relationship with many other ladies, that was the point of breakening between them. This is the basic cause of difference between. It is submitted by the counsel that considering this, period their relationship was normal base on the promise to marry but it is alleged that lately applicant refuse to adhere his words and wriggled out from his promise. All these alleged acts are prior to their formal marriage of which both the parties enjoyed quality time with each other knowing fully with its consequences.
Learned counsel for the applicant in order to buttress his contention has relied upon the judgements of Shiv Shankar @ Shiva Vs. State of Karnataka in Crl. Appeal No. 504 of 2018 decided on 06.04.2018, Dileep Singh @ Dilip Kumar Vs. State of Bihar reported in 2005 (1) SC 88 and Deepak Gulati Vs. State of Haryana reported in 2013 (7) SCC 675, in which the concept of "consent" was lucidly explained by Hon'ble Apex Court. It is further submitted by the counsel that on her own volition and accord victim has surrendered herself and established a physical relationship knowing well aware of its repercussions. She is elderly lady of 55 years and her intelligence cannot be doubted.
Per contra learned AGA and Sri Rajendra Prasad, learned counsel for the complainant argued that the applicant has deliberated created a sham world of promises and dupe poor victim in his web and after sexually exploited her, thrown her out. Learned counsel for the complainant apprehends that the moment applicant would bailed out he would fled away from the country and the trial of the case would be seriously jeopardize.
Considering the rival submissions made by learned counsel for the parties as well as learned AGA and without expressing any opinion on the merits of the case keeping in view that the contesting parties are elderly persons, this unfortunate FIR came into existence with unfortunate accusation with each other and keeping in view the law laid down by Hon'ble Apex Court in the aforementioned case, I find that let the applicant- Kirandeep be released on bail on his executing a personal bond and furnishing two heavy sureties each in the like amount to the satisfaction of the court concerned in case crime no. 757 of 2014, under Sections 420 and 376 IPC, P.S. Civil Lines, District Moradabad with the following conditions:-
(i) AFTER RELEASE ON BAIL, THE APPLICANT WITHIN A WEEK THEREAFTER WOULD HAND OVER HIS PASSPORT IN ORIGINAL BEFORE THE TRIAL COURT.
(ii) CONTESTING PARTIES WOULD FULLY COOPERATE IN THE EARLY DISPOSAL OF THE TRIAL, THEY WOULD RENDER ALL POSSIBLE ASSISTANCE AND COOPERATION TO THE TRIAL COURT. THE TRIAL COURT IS EXPECTED TO GEAR UP THE TRIAL AND MAKE ALL NECESSARY AND SINCERE ENDEAVOUR TO CONCLUDE THE TRIAL LATEST BY 31.12.2018. A WRITTEN UNDERTAKING BE GIVEN BY THE RESPECTIVE COUNSEL ON BEHALF OF THEIR CLIENTS IN THIS REGARD BEFORE THE COURT.
(iii) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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.
(iv) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(v) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(vi) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) 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 THE HIM/HER IN ACCORDANCE WITH LAW.
(vii) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 4.5.2018 Abhishek Sri.