Allowed

Shivam Mishra @ Amar Babu v. State of U.P.and Another

Allahabad HC6 Sept 2021CRLA/1763/2021

Case brief

AI extract

What is this about?

In this criminal appeal, the single judge set aside the Special Judge's order rejecting the appellant's bail application. The court identified an unexplained one-year delay in the FIR and suggested the allegations were an afterthought stemming from a failed marriage arrangement. The appeal was allowed with the appellant's release on bail subject to conditions.

What did the court decide?

Appeal allowed; Impugned order of bail rejection set aside; Appellant released on bail on personal bond and two sureties each.

Shivam Mishra @ Amar Babu Vs State of U.P.and Another — Bail and Remand | Allahabad HC (2021)

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Court No. - 74

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Case :- CRIMINAL APPEAL No. - 1763 of 2021

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Appellant :- Shivam Mishra @ Amar Babu Respondent :- State Of U.P.And Another Counsel for Appellant :- Rajesh Kumar Yadav Counsel for Respondent :- G.A.,Arun Kumar Singh

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Hon'ble Pradeep Kumar Srivastava,J.

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Heard learned counsel for the appellants, learned counsel for the respondent no.2 and learned AGA for the State and perused the record.

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This appeal has been filed by appellant Shivam Mishra @ Amar Babu against the impugned order dated 18.2.2021 passed by learned Special Judge, SC/ST Act, Jhansi passed in Bail Application No 402 of 2021(Shivam Mishra @ Amar Babu vs. State of U.P.), arising out of Case Crime No. 424 of 2020, under Sections 376, 406, 323, 504, 506 I.P.C. and Section 3(2) 5 of SC/ST Act, P.S. Prem Nagar, District Jhansi by which bail plea of appellant has been rejected. Aggrieved by the rejection order this appeal has been filed.

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The FIR has been lodged by the respondent no.2 who is aged about 21 years and in the FIR four accused persons including the applicant have been named and the allegation is that the respondent no.2 got acquainted with the appellant through facebook and, thereafter, they started communication on mobile phone. Her parents talked with the parents of the appellant for marriage of both and the conversation also took place with regards the marriage with the brother-in-law of the appellant who is co-accused and named as Gaurav. The appellant came to her house on 11.10.2019 in Jhansi and talked about the marriage with her parents and on the insistence of all the accused persons she was taken to NOIDA Sector-76 on 12.10.2019 where she was kept for 20 days in a rented house where making false promise of marriage the appellant developed physical relationship with her. She was also taken to his brother-in-law and sister in Delhi and again she was brought back to village Kannauj. Thereafter, all the accused persons committed maarpeet with her, snatched her golden ring and was humiliated by abusing caste related words and finally she was made to sit in the train and the appellant left him to Jhansi Station.

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Submission of learned counsel for the appellant is that the FIR itself shows that the whole incident took place on 11.10.2019 in

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respect of which FIR has been lodged on 27.10.2020 after lapse of more than one year and there is no convincing explanation for this delay. Further submission is that the FIR version itself shows that there was a consensual relationship between both which continued for atleast 20 days but no grievance was raised from the side of the respondent no.2. It has been further submitted that the statement given by the respondent no.2 under Section 164 Cr.P.C. is an afterthought statement just to falsely implicate the appellant. The learned Special Judge did not consider the material aspect of this case and being influenced by the fact that the respondent no.2 belongs to scheduled caste community, rejected the bail application. The impugned order is not sustainable under law and is liable to be set aside. Further submission is that appellant has no criminal history and there is also no possibility of his either fleeing away from the judicial process or tampering with the witnesses.

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Learned AGA and learned counsel for the respondent no2. have vehemently opposed the prayer and submitted that in her statement under Section 164 Cr.P.C. it has been stated by the respondent no.2 that sexual intercourse was committed against her wishes and whatever happened, happened due to the promise of marriage advanced by the appellant. As such, there is no ground for releasing of the appellant and the impugned order is completely legal and no interference is required.

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Considered the submissions of both the sides. From the reading of the FIR itself, it appears that both the appellant and the respondent no.2 were acquainted with each other, their family met on relevant time and there was talk regarding their marriage. The FIR shows that for about 20 days they continued in a consensual relationship but it is strange that no grievance were raised from the side of the respondent no.2 for almost 11 months. As such, there appears to be a consensual relationship between both the sides and only because that the marriage conversation could not end in success, the said FIR has been lodged with the allegation of rape. The delay of about 11 months speaks in volume and this possibility cannot be ruled out that whatever stated by the respondent no.2 in her statement was an afterthought. The learned Special Judge appears to have ignored the material aspect of this case and I find there is an error in the impugned order by which bail application of the appellant has been rejected. The impugned order is not sustainable under law and is liable to be set aside.

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In the result, appeal is allowed . Impugned order dated 18.2.2021 passed by learned Special Judge, SC/ST Act, Jhansi is set aside.

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Let appellant-applicant Shivam Mishra @ Amar Babu be released on bail in Bail Application No. 402 of 2021 (Shivam Mishra @ Amar Babu vs. State of U.P.), arising out of Case Crime No. 424 of 2020, under Sections 376, 406, 323, 504, 506 I.P.C. and Section 3(2) 5 of SC/ST Act, P.S. Prem Nagar, District Jhansi on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-

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(i) The applicant-appellant will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that he is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.

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(ii) The applicant-appellant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.

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(iii) The applicant-appellant will not indulge in any unlawful activities.

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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.

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Order Date :- 6.9.2021 Mini

Shivam Mishra @ Amar Babu v. State of U.P.and Another

Case brief

What is this about?

What did the court decide?

Shivam Mishra @ Amar Babu 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

Statutes considered

Parties & counsel

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