Allowed

Om Prakash Rajbhar v. State of U.P. and Another

Allahabad HC8 Jul 2021BAIL/3442/2021

Case brief

AI extract

What is this about?

In this criminal bail application, the court examined the delay in FIR registration, the consensual relationship between accused and victim, and lack of medical evidence. Ruling that bail had been made out, the applicant was released on personal bond with stringent conditions to ensure trial attendance and speedy conclusion.

What did the court decide?

Applicant Om Prakash Rajbhar released on bail on execution of personal bond without sureties until normal functioning of courts is restored, subject to stringent conditions regarding court appearances

Om Prakash Rajbhar Vs State of U.P. and… — Child Sexual Offences (POCSO) | Allahabad HC (2021)

¶1

Court No. - 67

¶2

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3442 of 2021

¶3

Applicant :- Om Prakash Rajbhar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Viveka Nand Rai,Yogesh Singh Counsel for Opposite Party :- G.A.,Dewarshi Kumar Rai

¶4

Hon'ble Rahul Chaturvedi,J.

¶5

Heard Sri Viveka Nand Rai, Advocate assisted by Sri Yogesh Singh, learned counsel for the applicant as well as learned A.G.A for the State and perused the record.

¶6

By means of this application, the applicant who is involved in case crime no.409 of 2020, under Sections 376, 506, 354, 323 IPC and Section 7/8 POCSO Act, Police Station-Rohaniya, District-Varanasi is seeking enlargement on bail during the trial. The applicant is languishing in jail since 09.11.2020.

¶7

Submission made by learned counsel for the applicant is that the present FIR was got registered for the unspecified date and time of the incident of 07.10.2020 under the aforesaid sections of the IPC by Smt. Champa Devi (by the victim herself) against the sole named accused persons.

¶8

From the text of the FIR, it is abundantly clear that referring to the date of incident of 2014, the present FIR came into existence after lapse of more than six years with the allegation that the applicant has forcibly sexually assaulted the victim. The victim herself is a married woman and mother of four kids. The husband of victim is a mentally retarded and hard hearing, and taking the advantage of this ailment of her husband, the applicant has established the relationship with the victim.

¶9

Learned counsel for the complainant has in no uncertain terms admitted and accepted that she (the victim) resides with the applicant with her consent at Puranpur with the applicant as husband and wife.

¶10

Learned counsel for the applicant submits that this relationship between them continued for an considerable period but when her young daughter Kajal seen her mother in compromising condition with applicant, then things has gone bad to worse. The allegation of making attempt upon Kajal is concerned, there is no evidence of the same, except bald statements of both supporting the allegation. There is no plausible justification coming forward for this inordinate delay in lodging the of the FIR and she remained in the company of the applicant for along considerable period and maintained this relationship.

¶11

The medical evidence completely belies the allegation of sexual assault upon her. Learned counsel for the applicant contended that even after alleged sexual assault in the year 2014 both of them (victim and the applicant) have contested the case before Tehsildar, Raja Talab, Varanasi in the year 2015. The order of Tehsildar, Raja Talab, Varanasi dated 04.05.2016 that land in question shall be mutated in the name of applicant and the victim, which clearly establishes that both of them are congenial relationship with each other.

¶12

Learned A.G.A opposed the prayer for bail but could not dispute the aforesaid facts and the legal submissions as argued by the learned counsel for the applicant.

¶13

Sri Devarshi Kumar Rai, learned counsel for the complainant has unable to give any plausible justification for this delay in lodging of the FIR. Not only this he has tried to confuse the Court by giving evasive reply to the queries made by the Court, this regard.

¶14

In the totality of the circumstances and the conduct of the victim that she remained with the applicant for considerable period and maintained relationship, seems to be that the victim is in consensual relationship with the applicant and submissions of learned counsel for the parties, I am of the view that the applicant has made out a case for bail.

¶15

Let the applicant-Om Prakash Rajbhar , 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:-

¶16

(i) THE APPLICANT/APPLICANTS SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE/THEY SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE WHEN THE WITNESSES IS/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.

¶17

(ii) THE APPLICANT/APPLICANTS SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER/THEIR COUNSEL. IN CASE OF HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIS/HER/THEIR UNDER SECTION 229-A IPC.

¶18

(iii) IN CASE, THE APPLICANT/APPLICANTS MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT/APPLICANTS FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIS/HER/THEIR, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

¶19

(iv) THE APPLICANT/APPLICANTS 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/APPLICANTS IS/ARE 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 HIS/HER/THEIR IN ACCORDANCE WITH LAW.

¶20

(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/APPLICANTS.

¶21

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

¶22

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/applicants to be released on bail forthwith. Needless to mention that these additional conditions are imposed to cope with emergent condition-:

¶23

The applicant/applicants shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is/are restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored.

¶24

The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

¶25

The computer generated copy of such order shall be self attested by the counsel of the party concerned.

¶26

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.

¶27

Order Date :- 8.7.2021

¶28

Abhishek Sri.

Om Prakash Rajbhar v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Om Prakash Rajbhar v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Shamshad @ Kaliya Vs State of U.P.

Shahnawaj Vs State of U.P. and Another

Atul Yadav @ Mintu Vs State of U.P.

Shivsagar Yadav Vs State of U.P.

Om Prakash Chaudhary Vs State of U.P.

Dinesh Kumar Vs State of U.P.