HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 14

AFR

Case :- CRIMINAL MISC. BAIL APPLICATION No. – 36047 of 2017

Applicant :- Radhey Shyam Sharma

Opposite Party :- State Of U.P.

Counsel for Applicant :- Preet Pal Singh Rathore

Counsel for Opposite Party :- G.A.

Hon’ble Arvind Kumar Mishra-I,J.

Counter and rejoinder affidavits have been exchanged which are taken on record.

Heard Sri V.P. Srivastava, learned Senior Advocate assisted by Sri Preet Pal Singh Rathore, learned counsel for the applicant, Sri Satish Trivedi, learned Senior Advocate assisted by Sri Bharat Singh, learned counsel for the informant as well as learned AGA for the State of U.P and perused the material available on record.

Crux contention raised on behalf of the applicant while defining chronological background of this case it has been stressed that in this case peculiarity is that the applicant happens to be husband of the informant and he is wedded with the informant according to the Hindu rites and entered into nuptial knot on 29.04.2017. But prior to that it so happened that both the informant and the applicant lived together out of love and affection got themselves married in Arya Samaj on 04.05.2014. This marriage was got registered on 21.05.2014. Thereafter, a complaint was filed by the informant Anamika against her brother wherein her statement was recorded under Section 200 Cr.P.C. In the meanwhile, the real brother of the informant Anamika lodged the first information report at Case Crime No.630 of 2016 under Sections 363, 366 IPC, at Police Station Ujhani, District Baduan.

When the matter came to the knowledge of the applicant and the present informant of this case, both jointly filed criminal misc. writ petition no.51626 of 2016 for protection wherein a joint affidavit was also filed, copy whereof has been annexed as annexure no.8 to the affidavit filed in support of the bail application. This Court vide order dated 26.10.2016 granted protection to both of them. In the meanwhile, on 31.10.2016 co-accused of this case Rajpal was kidnapped and the report was lodged at Case Crime No.669 of 2017 under Sections 364, 394 IPC, at Police Station Ujhani, District Badaun. This first information report was challenged by filing criminal misc. writ petition no.23311 of 2016 wherein arrest was stayed by this Court vide order dated 09.11.2016, copy whereof has been annexed as annexure no.11 to the affidavit filed in support of the bail application. Ultimately the aforesaid FIR pertaining to Case Crime No.630 of 2016 under Sections 363, 366 IPC was quashed by this Court vide order dated 10.02.2017.

During the aforesaid span of time, it was agreed upon between the family members of the applicant and the informant that they Anamika should get their marriage solemnized by the Hindu rites socially. Therefore, social marriage according to the Hindu rites took place on 29.04.2017. But after 29.04.2017, the informant’s family members persuaded the informant to come and reside with them (at her parental home) for some time and from that point of time, sudden twist and change of the circumstances in well intriguing manner took place. After the first information report under Sections 363, 366 IPC was quashed vide order of this Court on 10.02.2017, the brother of the informant who is sub-inspector in the U.P. police department was having certain grudge towards the informant for the reason that her sister had married with the applicant who is Brahim by caste, whereas, the informant Anamika is a Kshatriya by caste. The brother of the informant could not digest the above inter-caste marriage and tried to unknot the nuptial knot and hatched a well thought-out plan and he managed this lodging of first information report.

The mental and physical condition of the informant was put under great pressure when she reached her parental home, therefore, the informant Anamika was produced for recording her statement under Section 164 Cr.P.C. on 17.05.2017 when the learned Magistrate after observing her physically has made categorical remark in writing that she appears to be in great mental stress and she is mentally not prepared to make any statement and the Investigating Officer was directed to send back the informant Anamika to Nari Niketan and produce her after three days i.e. 20.05.2017. But brother of the informant somehow managed things and an application with a deliberate plan was again moved the very same day on 17.05.2017 to the effect that her statement be recorded on 18.05.2017 itself and the previous order passed by the Magistrate was surprisingly modified to the extent and ambit that instead of Nari Niketan, the informant Anamika be kept at Women Police Station, Badaun and she be produced for recording her statement under Section 164 Cr.P.C. on 18.05.2017. Then on 18.05.2017, a detailed statement of the informant Anamika was recorded but the same does not contain any observation regarding mental condition and fitness of the informant Anamika. This by itself is indicative of fact that some foul play has taken place even in the lower court and the statement of the informant Anamika has been deliberately obtained by the Investigating Officer under influence of the brother of the informant Anamika who is sub-inspector in U.P. police department.

Further stressed to the point that assuming it to be that things alleged were going on for the last two years from the date of lodging of the first information report as the first information report was lodged on 10.05.2017 then exploitation of the informant must have commenced from May, 2015. But it is obvious that the first information report in question was quashed by this Court in the aforesaid writ petition (in 2016). The date of birth of the informant Anamika pertains to the year 1987 and that of the applicant to the year 1983 then from 29.04.2017 when the informant was sent to her parental home after performing social marriage, what transpired in between up to 10.05.2017 that the whole story involving inter-alia Sections 376D, 377 IPC was deliberately included to the great annoyance of the applicant. The chronological background and material brought on record are suggestive of fact that the informant’s brother is instrumental behind the scene and is misusing his official position. It cannot be said that all through the period from 2014 up to 29.04.2017, the informant was put under great threat, therefore, she had never any occasion to divulge the truth.

Fact is that the informant of her own voluntarily accompanied the applicant and resided with him at several places Even after 29.04.2017, the informant was in conversation with some another person and was anxious to get the applicant extricated from clutches of law. The detail of telephonic conversation between the informant and another person, whose name has been mentioned under paragraph no.3 of the supplementary affidavit. A computer CD has also been brought on record as SA-1. Therefore, a man of ordinary prudence can himself guess the reality. The first information report is a trick to dissuade the informant from the applicant which need be stopped by the Court.

The process of the court was misused by arranging change in the order of the custody of the informant from Nari Niketa to the Women Police Station. Obviously, the brother of the informant could have applied forced on the informant at the police station which was not possible in Nari Niketan. The date fixed 20.05.2017 for statement under Section 164 Cr.P.C. was preponed to 18.05.2017.

In reply to aforesaid contention;

Sri Satish Trivedi, learned Senior Advocate for the informant has submitted that the victim in fact was enticed away and we know that in the Indian society a girl becomes emotional and falls in love without knowing reality of life and this aspect cannot be overlooked by anyone. In this case also, the girl and boy were in love. No doubt the informant appeared before this Court. The informant accompanied the applicant but the fact is that the applicant misused his position and the informant was put to great mental and physical harassment and she was used as an instrument of pleasure for the others by active connivance of the applicant. She was put under great mental pressure and she was mercilessly beaten and she was forced to indulge in such activities due to which she had no other option left. The informant has categorically that she has been used for others.

Learned counsel for the informant next added that the wife was used as prostitute. Not only this, but the applicant also committed offence under Section 377 IPC. She met with torturous behaviour at the hands of the applicant. Once she came back to her parental home, a Habeas Corpus Writ Petition was filed before this Court which was dismissed in the wake of statement given by the informant that she is living with her parents.

Next submitted that the injured sustained some injuries and medical examination was also conducted. Injuries have been found to be grievous in nature. It is worst for a girl that she is obliged to the others and she was gang raped. The past history alone would not save the applicant of his misdeed. The act of the applicant is diabolic, abominable and inhumane.

While retorting to the above submission, Sri V.P. Srivatava, learned Senior Advocate has intervened and submitted that the brother of the informant has fabricated and manufactured injuries in order to aggravate inculpatory allegations against the applicant.

Learned AGA has opposed prayer for bail. However, learned AGA has not disputed the aforesaid factual aspects.

I have considered the rival submissions and entirety of the case as brought before this Court by the parties and divulged by record. It is obvious that the girl/informant resided with the applicant from 2014 up to 29.04.2017 and both the applicant and the informant behaved as if they are husband and wife. One particular aspect of this case is that some writ petition was preferred by the informant jointly with the applicant before this Court where ample opportunity was admittedly available to the informant and the writ petition was ultimately allowed. There are the other aspects of this case also, one of them being recording of statement of the informant under Section 164 Cr.P.C. on 18.05.2017 instead of the date fixed 20.05.2017. The hurried manner in which it was recorded stands exposed to the extent that before recording the statement, no observation, whatsoever, has been made regarding physical and mental condition of the informant, copy of statement has been annexed as annexure no.19 to the affidavit filed in support of the bail application.

Without expressing any opinion on merits of the case but considering the facts and circumstances of the case, nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tampering with witness or apprehension of threat to the complainant and prima facie satisfaction of the Court in support of the charge, the applicant is entitled to be released on bail. Accordingly, bail application is allowed.

Let the applicant Radhey Shyam Sharma involved in Case Crime No.239 of 2017, under Sections 323, 120B, 325, 326, 376D, 377, 406, 504, 506 I.P.C., Police Station Ujhani, District Budaun be released on bail on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned subject to the condition that the applicant will cooperate with the trial before trial court.

The observations made both on factual and legal aspects in the entire body of this bail order shall not touch merit of the case. The trial court shall not be prejudiced by the observations made therein.

Order Date :- 22.9.2017

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