Allahabad High Court
Amit Verma vs C.B.I. on 12 January, 2021
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 16 Case :- BAIL No. - 6370 of 2017 Applicant :- Amit Verma Opposite Party :- C.B.I. Counsel for Applicant :- Vijai Vikram Singh Counsel for Opposite Party :- Amarjeet Singh Rakhra,Anurag Kumar Singh,Pranshu Agrawal,Raghvendra Pandey Hon'ble Rajesh Singh Chauhan,J.
Heard Sri Arun Sinha, learned counsel for the applicant and Sri Anurag Singh, learned counsel for the Central Bureau of Investigation.
Sri Sinha has contended that the present applicant in in jail since 21.3.2017 in Case Crime No. 323 of 2014 u/s 354-C/376/376-D/506 I.P.C. and section 66E I.T. Act, P.S. Kotwali, District Sitapur.
At the outset Sri Sinha has drawn attention of this Court towards Annexure no. 3 of the bail application which is bail order of learned court below dated 19.7.2014 in same crime number. While granting bail by learned court below the fact that no complaint has been lodged on behalf of victim has been considered. The learned court below had also considered that there was no independent witness of the incident in question and since there was no complaint on behalf of victim, therefore, the question of recording statement etc. of victim does not arise. Sri Sinha has further submitted that after release from the jail the matter of the present applicant has been handed over to the C.B.I. pursuant to the order of Hon'ble Apex Court and the present applicant has been again arrested on 21.3.2017. At this stage he has placed reliance of the dictum of Hon'ble Apex Court in the case of Manoj Suresh Jadhav and others vs. State of Maharashtra reported in (2019) 17 Supreme Court Cases 362 wherein the similar facts have been considered by the Hon'ble Apex Court as during the course of investigation section 376 IPC was added, after the said applicant was granted bail, therefore, the Hon'ble Apex Court has held that if the accused person has already been released on bail and due to subsequent addition of another section against him during the course of investigation, re-arrest of such accused person on the basis of such investigation ignoring earlier bail order would not be permissible. However, the application for cancellation of bail under section 439 (2) Cr.P.C. could have been filed by the prosecution. In the present case earlier the F.I.R. was registered under Crime Case No. 323/14 u/s 354A, 354B, 354, 292 and section 34 IPC read with section 67A of Information Technology Act, P.S. Kotwali, Sitapur and after investigation being conducted by the C.B.I. section 376/376D and 506 IPC have been added. The present applicant was granted bail by the learned court below for the same crime on 19.7.2014, therefore, in view of dictum of Hon'ble Apex Court in re: Manoj Suresh Jadhav (supra) the present applicant should not be re-arrested in the same crime case.
Sri Sinha has further submitted that the definition of rape has been given under section 375 IPC wherein the first and foremost ingredient is 'will' and 'consent' of the victim, to be more precise the allegation of rape may prima-facie be established if the said offence has been committed by the accused person against the will of the prosecutrix or without her consent.
In the present case since the statement of prosecutrix / victim has not been recorded at any stage, to be more precise, firstly by the police and secondly by the C.B.I, therefore, the factum of 'will' and 'consent' is missing. Not only the above even no F.I.R. has been lodged against the present applicant by the victim or on her behalf. Therefore, Sri Sinha has submitted that when there is no F.I.R. on behalf of victim or prosecutrix and the very fact as to whether the offence in question has been committed against her will or consent has not been ascertained, therefore, prima-facie the offence under section 376 IPC and 376D are not made out. Therefore, the present applicant may be released on bail. He has also submitted that since the C.B.I. has also filed charge-sheet, therefore, the applicant shall cooperate with the trial proceedings and shall not take unnecessary adjournments and shall not misuse the liberty of bail and shall abide by the terms and conditions of the bail order.
Sri Anurag Singh, learned counsel for the C.B.I. has opposed this bail application by submitting that this is a case of gang-rape and even if the prosecutrix has not got herself examined or recorded her statement before the police or before the C.B.I. even then the applicant can be held liable for the offence he has committed. He has further submitted that after examination of video in question it is clear that the victim was brutally raped by the present applicant and the identity of the present applicant has been properly verified by the forensic lab, therefore, on the basis of said MMS video the present applicant may be held guilty. Therefore, he should not be enlarged on bail.
On being confronted on the point of re-arrest in the same crime case in which the accused has been granted bail by the competent court which has been considered by the Hon'ble Apex Court in re: Manoj Suresh Jadhav (supra), Sri Singh has submitted that in the case of Manoj Suresh Jadhav (supra) initially the F.I.R. was lodged under section 509 read with section 34 IPC wherein said accused persons were granted bail and during investigation section 376 was added but in the present case besides section 376 section 376D was also added, therefore, the present case is different from the case considered by the Hon'ble Apex Court in re: Manoj Suresh Jadhav (supra).
Sri Anurag Singh has not addressed the Court on the point of re-arrest by the police in the same crime case adding some more section ignoring earlier bail order. The view of the Hon'ble Apex Court in the aforesaid case is that if the accused person has been granted bail in particular crime case and some sections have been added during investigation his re-arrest would not be permissible. Therefore, it appears that on that legal point Sri Anurag Singh has no reply. Further, the point as to whether any F.I.R.or charge-sheet may be filed under section 376 or 376D IPC when there is no complaint or F.I.R. by the victim or on her behalf and the statement of victim or anyone supporting the incident has not been recorded. Whether said F.I.R. would be prima-facie sustainable in the eyes of law, no proper reply has been given supporting with the relevant provisions of law. However, at this stage this Court is not appreciating the merits of the case which may effect the trial proceedings. Rather, this Court expects that the learned trial court shall conduct and conclude the trial independently without being influenced from any observation made in this order. Further, during the trial, the trial court concerned shall have to be more vigilant and careful and shall ensure that the allegations so levelled in the charge-sheet are tested by appreciating all possible testimonies and material available on record. It is also expected that the trial shall be concluded with expedition by taking recourse of section 309 Cr.P.C. if need be, and no unnecessary adjournments shall be given to any of the parties. The applicant shall not misuse the liberty of bail and shall cooperate with the trial proceedings and shall abide by all terms and conditions of bail.
Without entering into the merits of the case and considering the aforesaid facts and circumstances, the applicant is entitled to be released on bail in this case.
Let the applicant Amit Verma, involved in 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 :- 12.1.2021 Om [Rajesh Singh Chauhan, J.]