Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25242 of 2021 Applicant :- Kailash Sonkar Opposite Party :- State of U.P.
Counsel for Applicant :- Anuj Srivastava
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Devang Sabla, learned counsel for applicant and learned A.G.A. for State.
2. Applicant-Kailash Sonkar, has approached this Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. after rejection of his Bail Application vide order dated 10.05.2021, passed by Additional District and Sessions Judge/Fast Track Court-I, Varanasi, in Case Crime No.52 of 2021, under Sections 376, 504, 506 I.P.C., Police Station Ram Nagar, District Varanasi.
3. Learned counsel for applicant submitted that applicant is a married person having five daughters and one son and he is related as Jeth to the Complainant. Admittedly there were dispute amongst the brothers on distribution of share of family property. Alleged incident is dated 07.11.2020 alleging that applicant raped the victim, who is wife of his younger brother. Victim approached the Magistrate on 04.01.2021 for appropriate direction of lodging FIR. In pursuance of order of Magistrate dated 08.02.2021, FIR was lodged on 27.02.2021. It is submitted that during investigation in the statements recorded under Sections 161 and 164 Cr.P.C. victim/ complainant has supported the case, as narrated in FIR. Learned counsel also pointed out that on 10.10.2020 applicant has lodged an NCR against complainant/ victim and her husband alleging an occurrence where they have assaulted applicant and family members. The present case is a counter blast of said NCR. It is also pointed out that subsequently also on 03.04.2021 applicant has approached the Senior Superintendent of Police, Varanasi about an occurrence where again husband of victim has assaulted applicant and his family members and also destroyed his property. Medical report of victim has not supported the case of prosecution and it is a case of false implication. Lastly, it is submitted that applicant has no criminal history and he is languishing in jail since 08.04.2021 and in case, he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
4. Learned A.G.A. appearing for State has opposed the prayer for bail and submits that victim has supported the case of prosecution in her statements recorded under Sections 161 and 164 Cr.P.C. However, the fact of lodging NCR and delay in approaching Magistrate is not disputed.
5(A) Law on bail is well settled that 'Bail is rule and Jail is 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 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 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. 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.
(C) The Court should record the reasons which have weighed with the count 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 case involving sexual offence against a woman should not mandate such 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, reported in 2021 SCC Online SC 230, in this regard.
6. Considering the rival submissions, material available on record, the period of detention already undergone, the unlikelihood of early conclusion of trial, absence of any convincing material to indicate the possibility of tempering with the evidence, relevant factors mentioned above, particularly that applicant is related as Jeth to the victim and he has a family having five daughters and one son; even prior to alleged occurrence an NRC was lodged against husband of victim; there is delay of more than one and half month in approaching the Magistrate; medical examination has not supported the case of prosecution and taking note of the submission that it could be a case of false implication; and that applicant has no criminal history, is languishing in jail since 08.04.2021, this Court is of the view that a case of grant of bail is made out.
7. Let the applicant- Kailash Sonkar 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.
8. 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.
9. The bail application is allowed.
10. Observations made above are only for the purpose of adjudicating the present bail application.
11. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
12. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
13. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 28.7.2021 AK Digitally signed by SAURABH SHYAM SHAMSHERY Date: 2021.07.29 15:03:10 IST Reason: Document Owner Location: High Court of Judicature at Allahabad