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HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. – 83
Case :- CRIMINAL MISC. BAIL APPLICATION No. – 42293 of 2020
Applicant :- Arjun
Opposite Party :- State of U.P.
Counsel for Applicant :- Dhiraj Kumar Pandey, A.Z. Khan
Counsel for Opposite Party :- G.A.,Rakesh Singh
Hon’ble Saurabh Shyam Shamshery,J.
1. Heard A.Z. Khan, learned counsel for the applicant, learned A.G.A. through video conferencing and 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.050 of 2020 under Section 376 I.P.C. Police Station-Sadar Bazar, District-Saharanpur after rejection of his Bail Application vide order dated 12.10.2020, passed by learned Sessions Judge, Saharanpur.
3. The victim herself lodged an F.I.R. under the above referred sections against the applicant and two other accused alleging that she is a simple girl who had given her educational certificates to one Monika who is related as daughter of her maternal Uncle. The applicant used to visit the house of Monika wherein he clicked some photographs of the victim and after editing made it to be unsolicited photograph and blackmailed her. The applicant enticed her and she came to Saharanpur along with him where she signed on some blank papers. She remained with the applicant at Saharanpur where she was raped repeatedly. After sometime, victim returned back to her house. However, the applicant used to rape her by putting under threat of posting her unsolicited pictures on various social platforms. Initially, the police authorities refused to lodge F.I.R., therefore, the victim approached the Magistrate who directed to lodge an F.I.R.
4.Learned counsel for the applicant contended that the age of the victim according to her ossification test is about 19 years. Applicant and victim have solemnized marriage on 2.12.2018 in Arya Samaj Mandir and the marriage certificate issued by the Arya Samaj is on record. The applicant has lodged a complaint on 7.6.2019 against the father of the complainant and other persons alleging abduction of his wife (victim). The applicant has also filed an application under Section 9 of the Hindu Marriage Act for restitution of conjugal right on 15.7.2019. Several independent persons have submitted affidavit in favour of the applicant. Even the independent persons have given statements that the applicant and the victim were living as married couple. Family of the applicant as well as the family of the victim are known to each other. However, the family of the victim was not happy with the marriage. The victim remained silent for almost 10 months. The applicant has no other reported criminal antecedent and he is languishing in jail since 21.9.2020, 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 A.G.A. has vehemently opposed the bail application and submits that the victim in her statement recorded under Section 164 Cr.P.C. has specifically alleged the offence of repeated rape by the applicant. She has specifically denied about any ceremony of marriage. No case of bail is made out.
6 (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.
7. Considering the rival submission, 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 careful perusal of the material available and the rival submissions, it is apparent that the victim is a major girl and she remained with the applicant and also prima-facie got married in Arya Samaj Mandir. During investigation, it is reported that in the medical examination no evidence of sexual assault was found. Even at one stage, the Investigating Officer has recorded that prima-facie it is a case where the applicant and victim were living as husband and wife. There is no recovery of any alleged unsolicited photographs of the victim and also taking note of the fact that there is no criminal history of the applicant and he is languishing in jail since 21.9.2020, and also considering the prevailing situation of Covid-19, the applicant is entitled to be released on bail in this case.
8. Let the applicant Arjun, involved in aforesaid case crime number be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(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.
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. 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.
14. The observations made hereinabove are only for the purpose of adjudicating the present bail application.