Special Judge rejection of bail in rape and SC/ST Act case set aside due to unexplained 21-day FIR delay and duration of imprisonment. Bail granted to appellant with personal and surety bonds.
Bail granted to appellant on bond and two sureties, subject to conditions of court attendance and no tampering.
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Court No. - 74
Case :- CRIMINAL APPEAL No. - 705 of 2020
Appellant :- Sanjay Gurjar Respondent :- State of U.P. and Another Counsel for Appellant :- Ramanand Gupta,Dharmendra Pratap Singh,Hemendra Pratap Singh,Vivek Singh Counsel for Respondent :- G.A.,Hitesh Pachori,Surendra Narayan Mishra
Hon'ble Pradeep Kumar Srivastava,J.
Heard learned counsel for the appellant and learned AGA for the State and perused the record.
Learned A.G.A. has filed counter affidavit, which is taken on record.
None appears on behalf of the respondent no.2.
This appeal has been filed by appellant Sanjay Gurjar against the impugned order dated 06.01.2020 passed by learned Special Judge, SC/ST Act, Saharanpur passed in Bail Application No. 4610 of 2019 (Sanjay Gurjar vs. State of U.P.), arising out of Case Crime No.822 of 2019, under Sections 376, 504, 506 I.P.C. and Section 3(2)(v) of SC/ST Act, P.S. Sadar Bazar, District Saharanpur, by which bail plea of appellant has been rejected. Aggrieved by the rejection order this appeal has been filed.
The FIR version is that the incident took place on 29.10.2019 and the FIR was lodged on 19.11.2019 naming accused appellant with the allegation that the respondent no.2 had acquaintance with the appellant from the last three years and he used to come to her house and he had good faith on her. Her husband was also having good acquaintance with the appellant. On the date of incident, he came drunk and finding alone her house committed rape on her and threatened with dire consequence and abused with caste related words.
Submission of learned counsel for the appellant is that the FIR is delayed by 21 days for which there is no explanation in the FIR and the appellant is in jail from the last more than one and half year. Further submission is that he had some rivalry and litigation with Arvind Chauhan and the informant is a maid servant of the brother of the Arvind Chauhan. It has been further submitted that he has been falsely implicated just to grab the money and she has been prompted to do so by said Arvind
Chauhan who wants to settle his scope with the appellant. The learned Special Judge ignored this aspect of this matter and being influenced by the fact that the rape has been committed on the victim his bail application was rejected. The impugned order suffers from illegality 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.
Learned AGA has vehemently opposed the prayer and submitted that in her statement under Section 164 Cr.P.C. the informant has supported the FIR version as said that on the pointing of country made pistol rape was committed by the appellant on her. Further submission is that charge-sheet has already been filed by the police after investigation.
Considered the submissions of both the sides. The delay in lodging the FIR which is of more than 20 days has not been convincingly explained. The promptness of the FIR is a fact which determines the correctness of the FIR version. If the delay is not explained there is all possibility of an afterthought and concocted FIR. Moreover, the appellant is in jail from the last more than one and half year. In view of these two facts, I find that the learned Special Judge has committed illegality in rejecting the bail application of the appellant and the same is liable to be set aside.
In the result, appeal is allowed . Impugned order dated 06.01.2020 passed by learned Special Judge, SC/ST Act, Saharanpur, is set aside.
Let appellant-applicant Sanjay Gurjar be released on bail in Bail Application No. 4610 of 2019 (Sanjay Gurjar vs. State of U.P.), arising out of Case Crime No.822 of 2019, under Sections 376, 504, 506 I.P.C. and Section 3(2)(v) of SC/ST Act, P.S. Sadar Bazar, District Saharanpur, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
(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.
(ii) The applicant-appellant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant-appellant will not indulge in any unlawful activities.
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.
Order Date :- 3.8.2021 Mini
2 issues framed by the court
Whether the delay in lodging the FIR justifies setting aside the bail rejection order.
Whether the lower court committed illegality in rejecting bail given the unexplained delay and duration of imprisonment.
2 provisions across 2 enactments
Sanjay Gurjar
State of U.P.
Pradeep Kumar Srivastava
As recorded by the court registry
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