Allahabad High Court
Smt.Gulab Bai Ahirwar vs State Of U.P. 3 Others on 28 July, 2023
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:152262 Court No. - 64 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1230 of 2023 Applicant :- Smt.Gulab Bai Ahirwar Opposite Party :- State Of U.P. 3 Others Counsel for Applicant :- Ramesh Kumar Counsel for Opposite Party :- G.A.,Ashutosh Singh,Syed Imran Ibrahim Hon'ble Siddharth,J.
Heard Sri Amrendra Pratap Singh and Sri Ramesh Kumar, learned counsels for the applicant; Sri Syed Imran Ibrahim, learned counsel for the informant; learned AGA for the State and perused the material placed on record.
The instant bail application has been filed on behalf of the applicant, Smt.Gulab Bai Ahirwar, with a prayer to release her on bail in FIR/Case Crime No. 41 of 2022, under Sections 363, 120-B, 366, 376(3), 506, 368, 201, 34, 109, 376-D IPC and 5/6 & 16/17 POCSO Act, Police Station Pali, District- Lalitpur, during pendency of trial.
Learned counsel for the applicant has submitted that this Court has earlier granted bail to co-accused, Tilakdhari Saroj by the order dated 02.3.2023 in Criminal Misc. Bail Application No. 43236 of 2022 by recording following findings:-
"2. There is allegation in the FIR lodged by Smt. Dhanush Rani @ Mamta, against the applicant and five co-accused persons, namely, Chandan, Rajbhan, Harishshankar, Mahendra Chaurasia and Smt. Gulab Bai Ahirwar, that minor daughter of informant aged about 13 years was enticed away by co-accused, Chandan, Rajbhan, Harishankar and Mahendra Chauraia on 22.04.2022. It is further alleged that on 26.04.2022 the aforesaid accused persons left the victim at the police station with the inspector and ran away. The inspector handed over the victim to her aunt (mausi), co-accused, Gulab Bai Ahirwar and she sent the victim back. On 27.04.2022 the victim was called at police station and after her statement was recorded her mausi aforesaid handed over the victim to the Station House Officer, Tilakdhari Saroj, applicant who raped the victim inside the police station. On 30.04.2022, the victim was handed over to the childline.
3. Learned Senior Counsel for the applicant has submitted that it is a case of false implication of the applicant by the mother of the victim. First of all he has pointed out to the FIR dated 15.11.2021 lodged by the victim herself under Sections - 323, 504, 506 IPC against her father and mother, namely, Sri Manoj Ahirwar and Smt. Mamta Ahirwar, the informant of this case. In the aforesaid FIR, it has been alleged by the victim herself that her mother has lodged false reports against many persons herself and also through the victim. She has stated that on 07.11.2021, she has got report lodged against four persons of the village, namely, Rajbhan, Chandan and two sons of Mahendra Chaurasia. The villagers told her that false implication of innocence person is very bad and when she informed her mother in this regard she abused her and threw her out of her house. Her father also beated her and threatened her of life.
4. Counsel for the applicant submits that the mother of the victim is habitual of false implication of innocent persons and she extracts money after their false implication from accused persons. He has pointed out that there are eight cases lodged by the informant, Smt. Mamta. She is habitual of lodging frivolous cases, the details of 8 cases are detailed herein below :-
(1) Case Crime No. 95 of 2020, under Sections- 325, 323, 504 IPC, P.S- Pali, District- Lalitpur (Smt. Mamta vs. Rajbhan and Others).
(2) Case Crime No. 498 of 2016, under Sections- 354-A, 354-B, 323, 504, 506 IPC and 3(1)Da, Dha and 3(1)(12) SC/ST Act, P.S- Pali, District- Lalitpur (Smt. Mamta vs. Ravindra Singh & Others).
(3) Case Crime No. 164 of 2008, under Section 452, 376 IPC, P.S- Pali, District- Lalitpur (Smt. Mamta vs. Jaggannath & Others).
(4) Complaint Case moved by Smt. Mamta before Additional District and Sessions Judge, SC/ ST Act, Lalitpur, against Rajbhan, Tilakdhari Saroj, under Sections- 166, 354, 452, 323, 504, 506, 427, 201 IPC and 3(1)(Ta) Da, Dha, SC/ ST Act which is pending.
(5) Application under Section 156(3) Cr.P.C moved by Smt. Mamta before C.J.M., Lalitpur, against Sukh Lal and Others, under Sections 323, 452, 504, 506 IPC which was dismissed.
(6) Application moved by Smt. Mamta before Civil Judge (J.D) Lalitpur, under Sections 354, 452, 323, 504, 506, 509 IPC and Section 3(1)(Ta) Da, Dha SC/ ST Act.
(7) Application under Section 156(3) Cr.P.C was moved by Smt. Mamta before Additional District and Sessions Judge, POCSO Act, Lalitpur, against Chandan and others, under Sections 452, 376-D, 506 IPC and 3(1), B(1), 3(2)(12) SC/ ST Act and POCSO Act dated 30.03.2022.
(8) NCR No. 62 of 2020 Smt. Mamta vs. Smt. Gulab Bai and Others, under Sections 323, 504 IPC, P.S. Pali, District- Lalitpur, in which 151/107/116 proceeding was initiated.
5. Smt. Mamta, informant has also been implicated in four criminal cases lodged against her which are as follows :-
(1) Case Crime No. 98 of 2021, under Sections- 323, 504, 506 IPC, P.S. Pali, District- Lalitpur (Smt. Laxmi vs. Manoj (husband of Informant- Mamta).
(2) Case Crime No. 99 of 2017, under Sections- 454-B, 323, 504 IPC, P.S. Pali, District- Lalitpur (Smt. Kaushalya vs. Manoj (husband of informant - Mamta).
(3) Case Crime No. 128 of 2022, under Sections- 323, 504, 506 IPC, P.S- Pali, District- Lalitpur (Km. Kanchan vs. Smt. Mamta and Others).
(4) Case Crime No. 26 of 2022, under Sections- 147, 148, 149, 323, 504, 506, 388 IPC, P.S. Pali, District- Lalitpur (Smt. Jariya Bai vs. Smt. Mamta and Manoj).
6. He has further submitted that the wife of the applicant filed a petition before the investigating agency wherein she stated the following facts:-
(i) Name of informant- Smt. Mamta is mentioned amongst the name of shady / suspicious woman in the secret register of the police.
(ii) Case Crime No. 128 of 2021, under Sections- 323, 504, 506 IPC was registered against the informant- Smt. Mamta @ Dhanush Rani by her own daughter, Km. Kanchan, with the allegation that she is pressurizing her to get false FIR lodged against Rajbhan @ Chandan and sons of Chaurasia. In the said matter a charge-sheet was submitted on 10.12.2021 leading to grave annoyance to the informant.
(iii) On 24.11.2021 the informant moved an application before the Superintendent of Police, Lalitpur imputing allegation of rape of Km. Kanchan against Mahendra Chaurasia and Chandan. The matter was enquired by the Circle Officer, Palia, who found that allegations to be false and consequently the case was not registered. She subsequently moved an application under Section 156(3) Cr.P.C before the Special Judge, POCSO Act, Lalitpur, which is pending.
(iv) Another FIR was lodged against the informant and his husband, Manoj, for the offence under Sections- 147, 148, 149, 323, 504, 506, 342, 388 IPC, as Case Crime No. 26 of 2022 at the instance of one, Jaria Bai, relating to assault upon her son, Rajbhan, wherein it was mentioned that Smt. Mamta @ Dhanush Rani, has been raising threats of false implication in the cases of rape. Subsequently charge sheet was submitted in the said case.
(v) The informant- Smt. Mamta also moved an application before the Special Judge, SC/ ST Act, Lalitpur for lodging complaint against the applicant / S.H.O., Tilakdhari Saroj, Rajbhan and Mahendra Chaurasia, which was numbered Complaint Case No. 207 of 2022, wherein she against came out with frivolous allegations against the applicant.
7. Learned Senior Counsel for the applicant has further submitted that the informant has implicated her own sister as an accused in this case who gave shelter to the victim after she was turned out of her house. She is co-accused, Gulab Bai Ahirwar. It has been submitted that on account of false implication and extortion of money by the informant from innocent accused persons many persons have committed suicide.
8. Counsel for the applicant has finally referred to the timeline created on the basis of electronic evidence and call details records which shows that on 27.04.2022 from 22.15 hours to 28.07.2022 at 05:30 hours, co-accused, Dharmendra Ahirwar and Mahendra Ahirwar and the victim had stayed in village Karmara. Thereafter they proceeded to the village Kakdari on 28.04.2022 and in the night of 28/29.04.2022 the co-accused, namely, Dharmendra Ahirwar and Mahendra Ahirwar, took the victim to the house of Smt. Rajni Ahirwar in the village Kakdari. He has submitted that the allegation against the applicant that he committed the offence of rape against the victim in police station on 27.04.2022 is absolutely false.
9. Further allegation is that the victim was handed over by her mausi to S.H.O., Tilakdhari in the morning of 27.04.2022 and she was handed over to the applicant on 27.04.2022 is incorrect. On 27.04.2022 she was roaming with the two co-accused noted above. It has further been submitted that the statement of the victim recorded under Section 164 Cr.P.C., is at the behest of her mother and is absolutely false. The applicant is languishing in jail since 04.05.2022.
10. Learned Senior Counsel for the informant has vehemently opposed the bail application and has submitted that the bail of co-accused, Mahendra Chaurasia, has already been rejected by this Court.
11. Learned A.G.A has also opposed the bail application of the applicant and has submitted that there is serious allegation against the applicant made by the victim in her statement recorded under Section 164 Cr.P.C. Being a police officer he is not entitled to be enlarged on bail in view of such allegations.
12. After hearing the rival contentions and considering the antecedents of the victim and her mother, the informant, the prosecution allegations do not inspire confidence. The electronic data and call details collected by the investigating officer show that the deceased was not in the police station on 27.04.2022. The alleged offence therefore was not committed on the aforesaid date. The details of the cases of false implication lodged by the informant and the cases against her show that her conduct cannot be presumed to be fair. There is unexplained delay in lodging of FIR of about 12 days. There is not a single independent witness who may have proved the alleged offences against the applicant. The applicant being police officer cannot handed over the victim to the child line without any order from the Court. The statement of the victim recorded under Section 164 Cr.P.C does not inspires confidence keeping in view of the entire facts and circumstances of this case."
Learned counsel for the applicant has submitted that this Court has considered the role of the applicant also and the argument that the victim was handed over by applicant to co-accused, Tilkadhari Saroj, was considered by this Court in paragraph 9 of the bail granted to co-accused. Therefore he has submitted that it is a case of false implication and the applicant deserves to be enlarged on bail. The role of co-accused, Tilakdhari Saroj, has not been found in the incident to whom the victim was handed over allegedly by the applicant. Learned counsel for the applicant has further submitted that applicant is a woman and entitled to be benefit of Section 437 Cr.P.C. The applicant has been falsely implicated in this case. She has no criminal history to her credit and is languishing in jail since 4.5.2022 . In case, the applicant is released on bail, she will not misuse the liberty of bail.
Learned counsel for the informant has not disputed any contention raised by learned counsel for the applicant, but only submitted that Special Leave to Appeal No. 5473 of 2023 has been preferred against bail granted to co-accused, Tilakdhari Saroj and notices were issued thereon to the respondents.
Per contra learned A.G.A. has opposed the bail prayer of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, she does not deserves any indulgence. In case the applicant is released on bail she will again indulge in similar activities and will misuse the liberty of bail.
Having considered the submissions of the parties noted above, larger mandate of the Article 21 of the Constitution of India, considering the dictum of Apex Court in the case of Satendra Kumar Antil Vs. C.B.I. & Another, passed in S.L.P.(Crl.) No. 5191 of 2021, judgement dated 11.7.2022 and considering 5-6 times overcrowding in jails over and above their capacity by under trials and without expressing any opinion on the merits of the case, let the applicant involved in the aforesaid crime be released on bail on her furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions that :-
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) The applicant shall file an undertaking to the effect that she 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.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of her absence, without sufficient cause, the Trial Court may proceed against her under Section 229-A of the Indian Penal Code.
(iv) In case the applicant misuse the liberty of bail during trial and in order to secure her 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 her in accordance with law under Section 174-A of the Indian Penal Code.
(v) 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 her in accordance with law.
In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
The court below is directed to conclude the trial against the applicant, as expeditiously as possible, preferably within a period of one year.
The Registrar (Compliance) of this Court is directed to communicate this order to the court concerned within 10 days.
Order Date :- 28.7.2023 Ruchi Agrahari