In bail application regarding rape and related offenses, court rejected bail application despite termination of the assault case ground for cancellation. Directed trial court to conclude proceedings within four months.
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Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35236 of 2016
Applicant :- Rajesh Sahni Opposite Party :- State Of U.P. Counsel for Applicant :- Harish Chandra Singh,Anand Pal Singh Counsel for Opposite Party :- G.A.,Dharmendra Kumar,Dharmendra Prasad,R.K.Singh
Hon'ble J.J. Munir,J.
In compliance with the order dated 6.12.2018, the testimony of the prosecutrix recorded before the trial court in ongoing S.T. No.577 of 2017, has been filed on record through a supplementary affidavit by the learned counsel for the applicant, which is taken on record.
This is an application for bail on behalf of the applicant Rajesh Sahni, in Case Crime No.1090 of 2015 under Section 452, 376, 323, 504, 506 IPC, Police Station Ramkola, District Kushinagar.
Heard Sri A.P. Singh, learned counsel for the applicant and Sri Anil Gaur, learned counsel appearing for the complainant and Sri Akhilesh Kumar Mishra, learned AGA along with Sri Avanish Shukla, learned counsel appearing on behalf of the State.
The submission of learned counsel for the applicant is that it is a case of consent where the prosecutrix, who is a 35 years old lady with four children, has taken advantage of the applicant during period of time when she was living in Mumbai with her husband. It is alleged that she allured the applicant into a carnal relationship, demanded money on
various pretexts that the applicant paid. It is pointed out that in the FIR, it is the prosecutrix's case that during time, when the informants husband Kanhaiya Sahni went for overseas employment and suddenly died there on 31.05.2015, the applicant who was residing with the informant in Mumbai and is a relative and friend of her husbands, took advantage of her husband's absence and ravished her. Thereafter, it was brought to the notice of her father-in-law, who spoke to the applicant's parents, and was abused there. It is pointed out that considering the various aspects of the matter, the applicant was admitted to bail by the learned Additional Sessions Judge, FTC, Kushinagar vide order dated 16.01.2016. He was, however, reported to the police on 30.07.2016 vide Case Crime No.0836 of 2016 under Sections 323, 504, 506 IPC Police Station Kotwali Padrauna, District Kushinagar, where it is alleged that the prosecutrix at the time when she went to appear in Court, was confronted by the applicant with another man armed with deadly weapons, who stood at the main gate of the Court. As the prosecutrix went to purchase something to eat for breakfast from a nearby shop, (in or around the Court premises), the applicant and the other co-accused chased her with an intention to kill. It was upon an alarm being raised by the prosecutrix that she was rescued by those around the place. The said incident is said to have taken place at 10:45 AM on 30.07.2016 regarding which the FIR, above recorded, was registered. In the incident the prosecutrix sustained injuries and was medically examined regarding which a medical report dated 1.08.2016 that is on record, was duly
drawn up after a medical examination. On the said facts, the prosecutrix made an application for cancellation of bail on 3.08.2016 before the Court of Additional District & Sessions Judge, Court No.2 Kushinagar. The said bail cancellation application under Section 439(2) Cr.P.C., came to be allowed by the Additional Sessions Judge, FTC-II, Kushinagar vide order dated 27.08.2016, and the applicant is in jail since 14.09.2016, which is almost a period of little less than two years and a half by now. There is an injury report on record showing a contusion of 2cm x 1cm on the interior aspect of the right knee joint. This Court, at the hearing on 06.12.2018, was addressed on the issue by learned counsel for the applicant to the effect that the testimony of the prosecutrix is over and, therefore, the ground of threat to her on the basis of which bail granted to him was cancelled now stands exhausted. He should, therefore, be released on bail. This Court required the State to file a certified copy of the testimony of the prosecutrix, if recorded before the trial court within three days next through an appropriate affidavit vide order dated 6.12.2018. At the same time, learned counsel for the applicant and the complainant were permitted to file that evidence, if they so wished. A copy of the testimony of the prosecutrix has been filed on behalf of the applicant through a supplementary affidavit dated 16.12.2018.
The prosecutrix has deposed in support of the prosecution. It is not for this Court to comment on what inferences are to be drawn from that evidence about the plea of consent urged by the learned counsel for the applicant on merits.
Learned AGA has opposed the prayer for bail and submits
that looking to the conduct of the applicant, in suborning a witness and also the firm stand of the prosecutrix in the witness box in support of the prosecution, the applicant is not entitled to bail.
The other plea is that this is an application for bail founded not so much on merits, but one that seeks revival of that liberty that was already granted to him and cancelled because the prosecutrix came up with a case of assault and threat to deter her from testifying. Now, that her testimony is over, no purpose would be served by keeping the applicant in further detention. The Court has examined the testimony of the prosecutrix and also the documents relating to the time when bail of the applicant was cancelled for not abiding by the most sacrosanct condition, that the prosecution witnesses, much less the prosecutrix herself, would not be threatened. Looking to the fact that the applicant has, in the past, misused his liberty of bail, this Court is not inclined to enlarge the applicant on bail at this stage.
The bail application is rejected at this stage.
It is, however, directed that the trial Court shall proceed with the trial and conclude the same within four months next positively from the date of receipt of a certified copy of this order. This order shall be communicated to the trial Court concerned through Sessions Judge, Kushinagar by the office forthwith for compliance. In case the witnesses are not appearing, the trial court shall issue immediate coercive process to ensure their presence and once the witnesses appear or are brought before the Court, his/her
presence shall not be discharged till his/her testimony is over.
Order Date :- 18.12.2018 NSC
2 issues framed by the court
Whether the applicant should be released on bail given the trial witness testimony is now over and the original ground for bail cancellation no longer exists.
Whether the applicant's prior misuse of bail regarding an assault charge against the prosecutrix justifies continuing detention.
Rajesh Sahni
J.J. Munir
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
