The High Court allowed bail in a criminal case involving Section 376 IPC and POCSO charges. Bail was granted due to inconsistent victim statements and reliance on Dataram Singh dictum, releasing the applicant on bond and conditions to expedite trial.
Released on personal bond and two sureties to be verified, subject to strict trial conditions.
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Court No. - 67
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34610 of 2020
Applicant :- Shubham Opposite Party :- State of U.P. and Another Counsel for Applicant :- Yogendra Pal Singh,Narendra Kumar Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard Shri Yogendra Pal Singh, learned counsel for the applicant; Shri Shravan Kumar Yadav, learned counsel for the complainant; learned A.G.A. and also perused the record.
The applicant is facing prosecution in Case Crime No. 191 of 2020, under Sections 363, 376 I.P.C.; Section 3/4 POCSO Act and Section 3(2)(5) of SC/ST Act, Police Station-Rampur Maniharan, District-Saharanpur and is in jail since 18.06.2020.
Contention raised by the counsel is that the F.I.R. was registered by Smt. Indra on 18.06.2020 under Sections 363, 366 I.P.C. and 3(2)(v) of the SC/ST Act against the applicant for the alleged act of enticement of her minor daughter Priyanshi on 17.06.2020 at about 4 in the morning. She has attributed the entire role upon the applicant, Shubham. Thereafter the girl was recovered after considerable delay and she was put to Section 161 Cr.P.C. statement.
I have perused the statement under Section 161 Cr.P.C. in which she has stated that the victim and the applicant are in acquaintance for the last two years and she on her own joined the applicant and both of them went on motorcycle to Saharanpur. Thereafter they have taken a rented accommodation where she has made physical relationship with the applicant on her own. In Section 164 Cr.P.C. statement recorded on 24.06.2020 she has somersaulted by 180 degree stating therein that on account of quarrel in her house, on her own she went to some unknown destination and she has never suffered any untoward incidents from the side of the applicant. As per medical report her age comes around 18 years. Not only this she has declined to submit herself for any medical or her internal examination done by the doctor so as to verify the factum of rape upon her. In absence of this vital link, it is risky to put the applicant behind the bars on these abhorring allegation of rape by him.
Taking into account that she shifted her statement at every stage
which has shocked the confidence of the Court.
Learned counsel for the applicant further submits that the police after investigation has submitted the charge sheet against the applicant. Under the aforesaid circumstances, the applicant is not in a position to temper the evidence. There is no useful purpose to keep a person behind the Bar.
Learned A.G.A. has opposed the prayer for bail.
Keeping in view the nature of the offence, evidence on record regarding complicity of the accused, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018)3 SCC 22 and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
Let the applicant Shubham , who is involved in aforementioned case be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.
(i) 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.
(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS COUNSEL. IN CASE OF HIS ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM UNDER SECTION 229-A IPC.
(iii) 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 IPC.
(iv) 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.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.
Since the bail application has been decided under extra-ordinary circumstances, thus in the interest of justice following additional conditions are being imposed just to facilitate the applicant to be released on bail forthwith. Needless to mention that these additional conditions are imposed to cope with emergent condition-:
However, it is made clear that any wilful violation of above
conditions by the applicant, shall have serious repercussion on his/her bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 16.12.2020 Sunil Kr. Gupta
2 issues framed by the court
Whether the applicant is entitled to bail in prosecution for enticement and offences under IPC and SC/ST Act considering inconsistent victim statements.
Whether bail conditions can be modified to expedite release under extraordinary circumstances.
Colour shows how this judgement treated each authority
Dataram Singh Vs. State of U.P.Followed¶13
Dataram Singh Vs. State of U.P. and another reported in (2018)3 SCC 22 · Who else cites this
Shubham
State of U.P.
Rahul Chaturvedi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
