Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6177 of 2019 Applicant :- Abhisekh Kumar Opposite Party :- State Of U.P.
Counsel for Applicant :- Ghan Shyam Das,Kamal Krishna Counsel for Opposite Party :- G.A.,M. B. Yadav,Ram Autar
Hon'ble Mrs. Manju Rani Chauhan,J.
Third supplementary affidavit as well as short counter affidavit have been filed on behalf of the applicant and first informant respectively, today in the Court which are taken on record.
Heard Sri Kamal Krishna, learned Senior Counsel assisted by Sri Ghanshyam Das, learned counsel for the applicant, Sri M.B.Yadav, learned counsel for the first informant, Sri Om Prakash Mishra, learned A.G.A. for the State and perused the material on record.
The present bail application has been filed by the applicant- Abhishek Kumar with a prayer to enlarge him on bail in Case Crime No. 749 of 2018, under Sections 328, 506, 376 I.P.C., Section 3/4 of Dowry Prohibition Act, and Section 66, 67 of I.T.Act, Police Station Ghoorpur, District Allahabad.
It has been argued by learned counsel for the applicant that the applicant has been falsely implicated in the present case. Although, the F.I.R., has been lodged by the victim herself but there is a delay of about one year with the allegations that victim being student of B.T.C., course, while going to attend her classes, happened to meet the applicant, who is distantly related to her. The applicant gave assurance to marry the victim. On 23.11.2017, applicant went to victim's house, offered cold drink, in which he had mixed intoxicating material and committed rape upon her. The applicant took photograph as well as video during course of committing offence and blackmailing her, repeatedly committed rape upon her. In the statement of the victim recorded under Section 161 and 164 Cr.P.C., there is averment of refusal of marriage by the applicant but with respect to allegation of commission of rape, there is no contradiction with version in the F.I.R. Learned counsel further contends that the victim is a BTC student and is aged about 25 years while the applicant is a distant relative and both of them were in friendly terms and therefore, the victim is a consenting party. As the applicant is an unemployed, the victim does not want to marry him, hence present F.I.R., has been lodged. Learned counsel further contends that the F.I.R., version does not corroborate with the medical evidence and that no offence has been committed by the applicant. It is further contended that there is no injury either on the internal or external part of the victim and that there is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail. The applicant is in jail since 16.11.2018.
Learned counsel for the first informant has contended that the applicant had forcibly established physical relations with the victim which he had also capture in video and under the garb of marrying her the applicant had continuously committed the offence. It is further contended that the applicant also extracted money from the victim's family and blackmailed her and therefore the applicant is entitled for grant of bail.
Per contra learned A.G.A. has also opposed the bail prayer of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserves any indulgence. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail.
The Apex Court in the case of Sanjay Chandra Vs. CBI, (2012) 1 SCC 40 has held that 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 can be required to ensure that an accused person will stand his trial when called upon. Seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor : The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.
Considering the facts and circumstances of the case as well as submissions made by learned counsel for the parties and also perusing the material on record, without expressing any opinion on merit of the case, let the applicant involved in aforesaid case crime be released on bail on his furnishing a personal bond of Rs. 1 lac and two local sureties (out of which one should be of his family members) each of the like amount to the satisfaction of the court concerned, subject to the following conditions:
(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 :- 26.2.2019 S.Ali