Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20010 of 2018 Applicant :- Shubham Modanval Opposite Party :- State Of U.P.
Counsel for Applicant :- Amit Mahajan,Shyam Sudarshan Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard Sri Amit Mahajan and Shyam Sudarshan, learned counsel for the applicant, learned AGA and perused the record.
Contention raised at the Bar is that the applicant has been falsely implicated in the present case. It has been further submitted that the victim herself has lodged the FIR, under sections 376, 328, 504 and 506 IPC on 23.03.2018 for unspecified date and time of the incident against four persons, who happens to be the in-laws of the victim including the applicant -Shubham Modanval, brother-in-law (Devar) of the victim. The text of the FIR reveals that she got married with Saurabh Modanwal (who is the co- accused/husband in the instant case) on 04.12.2017. Her husband worked at Badhalganj and used to visit house after almost a fortnight. Milking the situation, her brother-in-law, the accused applicant, in the night of 06.03.2018, administering some intoxicating pills, outraged her modesty and snapped her nude pictures. On the ensuing night, when the applicant again tried to repeat the heinous act, the victim protested but the applicant extending threats to her kept on outraging her modesty till 15th March, 2018. During those disgusting period of cohabitation, the applicant used to ferociously assault and bite her. Thereafter she complained the matter to her husband and father-in-law and mother- in-law but instead of taking action against the applicant they favoured him and threatened to spoil her face by pouring acid on her. On the same lines, the victim has given her statements under sections 161 and 164 Cr.P.C. on 12.04.2018 but the fact remains that the victim eloped with Ashish Barnwal, her brother-in-law (Jeejaji), who resided in her neighbourhood and even after her marriage the aforesaid Jeejaji maintained the previous relationship and when this fact came to the knowledge of her husband, he filed an application under section 156(3) Cr.P.C., against her wife and one Ashish Barnwal on 07.04.2018 and on the same date, the aforesaid application was directed to be registered and the case was registered as Case No. 24 of 2018, wherein Shubham Modanwal on oath avowed that when his wife (herein the alleged victim) was caught red handed in a compromising position with the aforesaid Ashish Barnwal by his brother (herein the applicant), infuriated by that the victim herself explicated that she would tailor a superfluous story and fasten them in it, resultantly, the castle of the instant case was built in air against the applicant and his family members. It is lastly urged that the applicant is in jail since 24.03.2018, having no criminal antecedents to his credit.
Learned AGA opposed the prayer for bail but could not dispute the aforesaid facts and the legal submissions as argued by the learned counsel for the applicant.
Keeping in view the pinquent circumstances of the case, where the credentials of the alleged victim are doubtful and she has levelled the allegation of rape so liberally, this Court finds that the entire prosecution case should be taken as a pinch in the salt, therefore, considering the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties and without expressing any opinion on merits of the case, this Court is of the view that the applicant has made out a case for bail.
Let the applicant Shubham Modanwal, involved in Case Crime No. 45 of 2018, under sections 376, 328, 504 and 506 IPC, P.S. Saidpur, District Ghazipur be released on bail 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 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.
(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 IPC.
(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., 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 IPC.
(iv) 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.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court.
Order Date :- 28.5.2018 shailesh