Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25112
of 2021
Applicant :- Ashish Kumar Pandey
Opposite Party :- State of U.P.
Counsel for Applicant :- Satya Prakash Shukla
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard learned counsel for the applicant and the learned A.G.A. Perused the record.
2. The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No.22 of 2021, under Sections 376 I.P.C., Police Station-Babhani, District- Sonbhadra after rejection of his Bail Application vide order dated 24.5.2021, passed by learned Incharge Sessions Judge, Sonbhadra.
3. Ram Nath Biyar lodged the above referred F.I.R. on 3.3.2021 against the applicant that the applicant under the false assurance of marriage had made physical relationship with her daughter aged about 20 years for the last one year. On 28.2.2021, the applicant came inside his house and had physical relationship with his daughter and also refused to marry her.
4. Learned counsel for the applicant submitted that the medical examination of the victim was conducted on 6.3.2021. However, no symptom of rape was found. The date of birth of the victim according to High School Certificate is 25.7.2000, therefore, she was a major girl on the date of occurrence. It was a case of blackmailing because the victim and her farther were pressuring the applicant to marry her. The victim in her statement recorded under Section 164 Cr.P.C. has admitted that she was in consensual relationship with the applicant. They were caught red handed on 28.2.2021. The applicant has no other reported criminal antecedent and he is languishing in jail since 5.3.2021, there is no likelihood of early disposal of trial and the applicant undertakes that if enlarged on bail, he will never misuse his liberty and will co-operate in the trial.
5. Learned counsel for the applicant has relied upon a judgment passed by Apex Court in the case of Maheshwar Tigga Vs. The State of Jharkhand, 2020 (10) SCC 108 and submitted that under Section 90 I.P.C. a consent given under misconception is no consent in the eyes of law. But the misconception of fact has to be in proximity of time to the occurrence and in case it is being spread over a long period of time coupled with a conscious positive action not to protest, it would not be considered a consent given under a misconception and the applicant is entitled for bail.
6. Learned A.G.A. has vehemently opposed the bail application and submitted that the victim was in physical relationship with the applicant under the pretext of false promise of marriage. In her statement recorded under Section 164 Cr.P.C. the victim has also specifically stated that the accused applicant had taken unsolicited photographs of her and recorded her video in a compromising position and she was under threat also. In her statement the victim has also stated that the applicant has taken advantage of her and under fear she was not able to say the truth to her family members. Learned A.G.A. further pointed out that the victim in her statement recorded under Section 161 Cr.P.C. has stated that the applicant has refused to marry her. He lastly submitted that it is not a case where the alleged consent given by the applicant could be considered to be conscious and informed choice.
7 (A). Law on bail is well settled that 'Bail is a rule and jail is an exception'. Bail should not be granted or rejected in a mechanical manner as it concerns liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as existence of a prima facie case against the accused, gravity of the allegations, severity of punishment, position and status of the accused, likelihood of the accused fleeing from justice and repeating the offence, reasonable apprehension of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the accused.
(B). It is also well settled that the Court while considering an application for bail must not go into deep into merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered.
(C). It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. The Court should record the reasons which have weighed with the court for the exercise of its discretionary power for an order granting or rejecting bail. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
(D). The Court while granting bail in the cases involving sexual offence against a woman should not mandate bail conditions, which is/are against the mandate of "fair justice" to victim such as to make any form of compromise or marriage with the accused etc. and shall take into consideration the directions passed by Supreme Court in Aparna Bhat and others Vs. State of Madhya Pradesh and another, 2021 SCC Online SC 230, in this regard.
8. Considering the rival submission and the material available on record, it appears that the applicant and victim were in physical relationship for about one year. However, considering the statement of the victim recorded under Section 164 Cr.P.C. wherein she had specifically stated that she was under threat and fear that her unsolicited photographs and video in compromising position which were with the applicant might be made public, therefore, she had not been able to object physical relations with the applicant and further the applicant refused to marry her.
9. The alleged consent of the victim given under the aforesaid circumstances where there was an element of fear and false promise of marriage could not be considered to be a consent given by the victim as a conscious and informed choice. The facts of the present case are distinguishable from Maheshwar Tigga (supra) where the victim was in conscious and informed choice of relationship over a period of four years and it was a case after conclusion of trial, whereas the consideration in the present case is regarding bail.
10. In view of the above, the applicant has miserably failed to make out a case for bail.
11. Accordingly, this bail application is rejected.
Order Date:-27.7.2021-SB
Digitally signed by Justice Saurabh Shyam Shamshery Date: 2021.07.29 17:13:10 IST Reason: Document Owner Location: High Court of Judicature at Allahabad