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HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. – 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. – 28872 of 2020
Applicant :- Hari Om
Opposite Party :- State of U.P.
Counsel for Applicant :- Jitendra Singh,Kamlesh Kumar Dwivedi,Sandeep Kumar Singh
Counsel for Opposite Party :- G.A.,Ajay Dubey,Babban Prasad Dwivedi,Rajesh Kumar Srivastava,Virendra Kumar Srivastava
Hon’ble Saurabh Shyam Shamshery,J.
1. Heard learned counsel for applicant and learned A.G.A. for State.
2. Applicant-Hari Om, 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 17.08.2020, passed by Sessions Judge, Agra, in Case Crime No.985 of 2018 (Misc. Case No. 7120 of 2018), under Section 376 I.P.C., Police Station Nibohara, District Agra.
3. The prosecution case is arising out of a complaint case. Victim filed an application dated 30.01.2018 before Magistrate for lodging FIR alleging that six named accused including applicant and co-accused entered forcefully in her house on 18.01.2018 and committed rape turn by turn. Application was treated as a complaint. On the basis of complaint statements were recorded under Sections 200 and 202 Cr.P.C. Applicant and co-accused, Dharmvir were summoned vide order dated 09.07.2018 under Section 376 IPC.
4. Learned counsel for applicant submitted that the victim is a married major lady, aged about 28 years having three children. No attempt for lodging prompt FIR was made by victim. Earlier co-accused has filed NCR against the husband of complainant and present criminal proceedings are counter blast to it. Co-accused, Dharmvir Singh has already been granted bail by this Court vide order dated 15.12.2020 passed in Criminal Misc. Bail Application No. 43237 of 2020. It is a case of false implication. Lastly, it is submitted that applicant has no criminal history and he is languishing in jail since 02.08.2020 and in case, he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
5. Learned A.G.A. appearing for State has opposed the prayer for bail and submits that victim has specifically mentioned about the incident of rape by applicant and co-accused in her statements recorded before Magistrate in complaint case and on the basis of statements of victim applicant and co-accused were summoned.
6(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.
7. 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 complainant/victim is a major married woman having three children; no attempt was made by complainant to lodged FIR promptly; there are earlier criminal complaint against husband of victim from the side of accused and co-accused; medical report has not supported the prosecution case; co-accused has already been granted bail by this Court; and that applicant has no criminal history, is languishing in jail since 02.08.2020, this Court is of the view that a case of grant of bail is made out.
8. Let the applicant- Hari Om 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.
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. Observations made above 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 :- 19.7.2021