Allowed

Shivam Nagar v. State of U.P. and 3 Others

Allahabad HC26 May 2022BAIL/8215/2022

Case brief

AI extract

What is this about?

Bail application allowed allowing release on personal bond and two sureties subject to conditions preventing witness tampering. Court noted age discrepancy in victim's records and statement inconsistency but ultimately granted bail while reserving merit for trial court.

What did the court decide?

Applicant to be released on bail by furnishing personal bond and two reliable sureties in like amount subject to specific conditions.

Shivam Nagar Vs State of U.P. and 3 Others — Pension and Retirement Benefits | Allahabad HC (2022)

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Court No. - 72

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8215 of 2022

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Applicant :- Shivam Nagar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Rajeev Kumar Sharma Counsel for Opposite Party :- G.A.,Ashish Singh

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Hon'ble Sanjay Kumar Pachori,J.

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Heard Sri Rajeev Kumar Sharma, learned counsel for the applicant and Sri Vishwa Deepak Mishra, learned A.G.A. and perused the record.

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The present bail application has been filed on behalf of applicant Shivam Nagar under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No.169 of 2021,under Sections 452 and 376(3) I.P.C. and under Section 6 of POCSO Act, registered at Police Station Rath, District Hamirpur, during pendency of the trial, after rejecting the bail application of the applicant by Special Judge (POCSO Act), Hamirpur vide order dated 03.12.2021.

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Brief facts of the case are that the first information report dated 09.04.2021 has been lodged against the applicant by victim stating that the applicant has committed rape on the pretext of marriage in the month of October, 2020. He made physical relations with her forcibly. On 01.04.2021 at 10.00 P.M. the applicant came into the room of the victim, at that time she was alone and the applicant committed rape with her again.

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After lodging first information report, statement of the victim under Section 161 Cr.P.C. has been recorded on 10.04.2021. Medical examination of the victim was also conducted on 11.04.2021 whereas statement of the victim under Section 164 Cr.P.C. has been recorded on 12.04.2021. After recording the statements of other prosecution witnesses, chargesheet has been submitted against the applicant on 06.12.2021 and the applicant

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has been arrested on 12.11.2021.

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Learned counsel for the applicant submitted that the applicant is innocent and has falsely been implicated in the present case due to ulterior motive. It is further submitted that victim was consenting party as she has stated in the first information report that the applicant committed rape on the pretext of marriage. He further submitted that as per date of birth certificate of the victim, which has been issued by Government of Uttar Pradesh, Department of Medical and Health, Nagar Palika Parishad Rath dated 27.01.2022 is 21.07.2001. As per High School Certificate, date of birth of the victim is 10.10.2005, therefore, age of the victim at the time of incident is 15 years and six month but as per date of birth certificate, victim was major at the time of incident. He further submitted that victim has not supported the prosecution version in her statement recorded before the trial. Certified copy of the statement of the victim which has been recorded as P.W.-1 has been filed as Annexure-SA-1 to the supplementary affidavit dated 13.05.2022.

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He has next argued that the applicant has no previous criminal history and if the applicant is released on bail, he shall not misuse the liberty of bail.

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Per contra, learned A.G.A. and learned counsel for the first informant have supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicant and submit that the allegations involved are very serious in nature and the delay in lodging the FIR cannot be said to be fatal to the case at this juncture while considering the application of bail. But they could not point out any material to the contrary. They further submit that in case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.

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After considering the facts of the present case it prima facie

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appears that;

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(a) As per the High School Certificate, age of the victim was 15 years and six months at the time of incident whereas as per the the date of birth certificate, which has been issued by Government of Uttar Pradesh, Department of Medical and Health, Nagar Palika Parishad Rath, the victim was major at the time of incident.

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(b) The applicant has made physical relation with the victim on pretext of marriage.

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It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.

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Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.

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Let applicant, Shivam Nagar be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

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(i) The applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.

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(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.

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(iii) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 of Cr.P.C.

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(iv) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in the trial court.

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(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.

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(vi) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

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In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that 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 in accordance with law.

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It is made clear that the observations made in this order are limited to the purpose of determination of this bail application

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and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.

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The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked. 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.

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Order Date :- 26.5.2022

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Asha

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Digitally signed by ASHA Date: 2022.05.30 09:32:43 IST Reason: Location: High Court of Judicature at Allahabad

Shivam Nagar v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Shivam Nagar v. State of U.P. and 3 Others

Case brief

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What did the court decide?

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