Court No. - 78
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 24565 of 2021 Applicant :- Harsh Pathak @ Golu Opposite Party :- State of U.P.
Counsel for Applicant :- Sandeep Kumar Chaturvedi,Amit Kumar Srivastava,R S Dubey Counsel for Opposite Party :- Vinay Kumar Singh
Hon'ble Samit Gopal,J.
Heard Sri Amit Kumar Srivastava, learned counsel for the applicant, Sri Vinay Kumar Singh, learned counsel for the first informant and Sri Sanjay Kumar Singh, learned counsel for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Harsh Pathak @ Golu, seeking enlargement on bail during trial in connection with Case Crime No. 91 of 2021, under Sections 376, 323 I.P.C., registered at Police Station Campierganj, District Gorakhpur.
Learned counsel for the applicant argued that although the applicant is named in the First Information Report but the allegations therein are false and baseless. It is argued that the prosecutrix is a married woman aged about 30 years. She was subjected to medical examination which does not corroborate the prosecution story. It is argued that although the doctor had found injuries on her person but the said injuries were simple in nature and were opined to be about 2-4 days old. It is argued that as per the certificate of Chief Medical Officer concerned, the prosecutrix has been opined to be 30 years of age.
Learned counsel has further argued that in the First Information Report, the applicant, Laxhmikant Pathak, Chandra Prakash Pathak and Tappanath Pathak are named but in the second statement recorded under Section 161 Cr.P.C. the prosecutrix has exonerated the three other accused persons except for the applicant and as such charge sheet has been submitted only against the applicant. It is argued that there are variations in the First Information Report, statement recorded under Section 161 Cr.P.C. and 164 Cr.P.C. of the prosecutrix. It is argued that there is an inordinate delay of four days in lodging of the First Information Report. The alleged incident is stated to be of 26.03.2021 but the First Information Report has been lodged on 30.03.2021 even after the fact that in the First Information Report therein itself, it is mentioned that after the prosexutrix was raped she and her family were going to Police Station where on the way, they were assaulted and then called the police on Dial No. 112 who came there and there were talks between the parties and then she was directed to go to the Police Station and then she went to Police Station. It is argued that the same is an improbable story. He further argued that the applicant has no criminal history as stated in para 13 of the affidavit and is in jail since 05.04.2021.
Per contra, learned counsel for the first informant and learned counsel for the State opposed the prayer for bail and argued that the applicant is named in the First Information Report. There is an allegation of rape against him.
After having heard learned counsels for the parties and perusing the records, it is evident that the prosecutrix is a married woman aged about 30 years. There are variations in the First Information Report, statement recorded under Section 161 Cr.P.C., 164 Cr.P.C. and even in the second statement under Section 161 Cr.P.C. There is a delay in lodging of the First Information Report in spite of the fact that there was a police intervention after the incident itself.
Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
Let the applicant Harsh Pathak @ Golu, be released on bail in the aforesaid case crime number on 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant shall file an undertaking to the effect that he 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 will not misuse the liberty of bail in any manner whatsoever. 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., 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, in accordance with law, under section 174-A I.P.C.
(V) 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 him in accordance with law and the trial court may proceed against him under Section 229- A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
The bail application is allowed.
Order Date :- 20.12.2021 M. ARIF Digitally signed by Justice Samit Gopal Date: 2021.12.21 10:28:48 IST Reason: Document Owner Location: High Court of Judicature at Allahabad