Court No. - 83
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6897 of 2021
Applicant :- Surendra Kumar Bhartiya @ Suneel Kumar
Opposite Party :- State of U.P.
Counsel for Applicant :- Alok Kumar Yadav,Jigyasa Singh
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
This vacation Bench is hearing cases through virtual mode due to surge in Covid-19 cases.
Heard Ms. Preeti, Advocate holding brief of Shri Alok Kumar Yadav, learned counsel for the applicant and learned A.G.A. through video conferencing and perused the record.
The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No. 834 of 2020, under Sections 417, 376, 504, 506, 420 IPC read with Section 3/4 Dowry Prohibition Act, 1961, Police Station - Kotwali, District - Prayagraj after rejection of his Bail Application, vide order dated 23.12.2020 passed by Additional Sessions Judge/F.T.C. Court No.1, Allahabad.
Learned counsel for the applicant submits that in the present case, the First Information Report was lodged by the mother of victim against the applicant and his four relatives under the above referred sections alleging that applicant was in a physical relationship with the victim, on the pretext of a false promise of marriage for about three years, however, when the family members of the victim went to the house of applicant with the proposal of marriage, it was refused as the family of the victim shows their inability to satisfy the huge demand of dowry raised by father of the applicant. It is also alleged that even after the said incident, applicant entered into sexual relationship with the victim on the false promise of marriage. It is also alleged that victim has sufficient proof which are in the form of photographs, documentary proof or staying in hotel and whatsapp chat etc. Learned counsel vehemently argued and submitted that it is a case of the victim that she was in consensual sexual relationship with the applicant on the pretext of a promise of marriage and it is a case of the applicant that he never refused to marriage her and it was applicant's father who was not ready for marriage. There was no force in the relationship rather on the basis of whatsapp chat which is annexed along with this application, it appears that victim has herself break up with the applicant on her own sweet will. There is no whisper about any force.
Learned counsel, in support of her submission, has relied upon two judgments passed by the Supreme Court in the case of Tilak Raj vs. State of Himachal Pradesh; 2016 (4) SCC 140 and Dilip Singh vs. State of Bihar; 2005 (1) SCC 88 wherein the Supreme Court has granted acquittal on the ground that the parties were in prior consensual relationship and also the accused therein has genuine intention to marry the victim (the major girl) therein. In the present case also, victim is a major girl, who is pursuing a course of nursing and applicant has intention to marry her but his family has not supported. It is lastly submitted that applicant is young boy, who has no criminal history and is working as a Constable in Railway Protection Force. He is innocent and has been falsely implicated in the present case and is languishing in jail since 26.11.2020. There is no likelihood of early disposal of trial and the applicant undertakes that if he is enlarged on bail, he will never misuse his liberty, will not commit any offence during bail and will co-operate in the trial.
Per contra, learned A.G.A. has opposed the bail application and submitted that the victim in her statements recorded u/s 161 and 164 Cr.P.C. has supported the prosecution case and specifically stated that applicant has entered into physical relationship with her on the premise of promise to marry her. However, later on, the applicant and his family refused to solemnized their marriage. There are specific allegation regarding demand of dowry also which is supported by the statements recorded during investigation. The judgments relied upon by learned counsel for the applicant are the cases wherein the testimonies were tested and final judgment was passed after the complete trial whereas presently, the Court is dealing with the application for bail only, which has to be decided with the recognized parameters as held by the Supreme Court in the various judgments. Therefore, this bail application is liable to be rejected.
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 criminal antecedents of the accused. 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. 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. 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.
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 tampering with the evidence, relevant factors mentioned above, particularly that on the basis of the statements of the victim, prima facie, it appears that victim was in prior consensual relationship with the applicant for almost three years and considering that victim being a major girl and student of nursing college, prima facie, it cannot be said, at this stage, that relationship was without consent and also it appears from the records that applicant has intention to marry her, however, the father of the applicant has not given consent; that another circumstances which goes in favour of the applicant is that even after the refusal of marriage, victim and applicant remained together for some days and have consensual sexual relationship and further considering that applicant is working as a Constable in Railway Protection Force and as such, there is no likelihood that he would avoid the further proceedings as charge-sheet has already been filed against him; that applicant has no criminal history and is languishing in jail since 26.11.2020 and further that keeping in view the present prevailing situation due to surge in Covid-19 cases, therefore, this Court is of the view that a case of grant of bail is made out.
Let applicant -Surendra Kumar Bhartiya @ Suneel Kumar 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 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 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 they 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 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 Trial Court absence of applicant is deliberate or without sufficient cause, then it shall be open for Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law and Trial Court may proceed against him under Section 229-A IPC.
9. 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.
10. The bail application is allowed.
11. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.
12. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
13. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
14. 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 :- 20.5.2021 Rishabh
[Saurabh Shyam Shamshery, J.]