Allowed

Vimal v. State of U.P. Thru. Its Prin. Secy. Home, Lko. and Another

Allahabad HC13 Jul 2023/434/2023

Case brief

AI extract

What is this about?

Special CP Judge Appeal allowing bail to Vimal rejected earlier bail under Sections 363, 366 IPC and SC/ST Act. Court reversed lower court order finding no case made out as prosecutrix admitted voluntary relationship. Bail granted with strict conditions.

What did the court decide?

Appellant Vimal enlarged on bail with personal bond, two sureties, strict compliance with terms, and direction to expedite trial within one year under Section 309 Cr.P.C.

Vimal Vs State of U.P. Thru. Its Prin. Secy. Home, Lko… — Caste Atrocities | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC-LKO:45527

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Court No. - 15 Case :- CRIMINAL APPEAL No. - 434 of 2023 Appellant :- Vimal Respondent :- State Of U.P. Thru. Its Prin. Secy. Home, Lko. And Another Counsel for Appellant :- Vikas Chauhan Counsel for Respondent :- G.A.

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Hon'ble Shamim Ahmed,J.

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Counter affidavit filed on behalf of State is on the record.

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Learned counsel for the appellant submits that as there is no new ground mentioned in the counter affidavit filed on behalf of State, thus, he is not willing to file any rejoinder affidavit in reply thereto.

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As per the office report dated 20.03.2023 notice sent to the opposite party No. 2 has been served personally, but till date neither any counsel has appeared nor any counter affidavit has been filed on her behalf. It appears that opposite party No. 2 is not willing to contest the case.

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Considering the above mentioned circumstances and considering the fact the present matter pertains to bail and is an urgent matter, therefore, this Court is of the view to decide the same finally after hearing the learned counsel for the parties.

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Heard Shri Vikas Chauhan, the learned counsel for the appellant, Shri Veerbhan Singh, the learned A.G.A. for the Stateopposite party No. 1 and perused the entire record.

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The present criminal appeal under Section 14-A (2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 09.01.2023 passed by the learned Special Judge, (S.C./S.T. Act), Sitapur in Bail Application No. 686 of 2022, arising out of Case Crime No. 230 of 2022, under Sections 363, 366 I.P.C. and Section 3(2)5 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Kotwali Dehat, District Sitapur, whereby the bail application of the appellant has been rejected.

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Learned counsel for the appellant submits that the appellant is innocent and has falsely been implicated in the case due to enmity and village rivalry. The entire prosecution story as alleged has been made only with intention to defame the image of applicant and his family members in the society.

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Learned counsel for the appellant further submits that as per the version of the F.I.R. the appellant and two other persons took away the grand daughter of the complainant, whereas, the entire story as alleged in the F.I.R. is false and fabricated. When the prosecutrix was recovered her statements were recorded under Sections 161 & 164 Cr.P.C. in which she admitted that her age to be 17 years and she was in relation with the appellant for more than two years prior to the incident when she was in Delhi, thereafter, when her marriage was going to be solemnized, she left her house on her own sweet will and went with the appellant and she has not made any allegation against the appellant for forceful physical relation or there is any allegation against him regarding commission of her rape.

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Learned counsel for the appellant further submits that as per the medical report of the prosecutrix also there is no any external or internal injury found on her body and as per her medical report she was found to be about 17 years, thus, taking benefit of two years either side, the prosecutrix is major and she knows consequences very well.

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Learned counsel for the appellant further submits that the prosecutrix and appellant are consenting party and they know each other very well much prior to the incident, she went with the applicant on her own sweet will, thus, no case under Sections 363, 366 I.P.C. read with Section 3(2)5 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is made out, therefore, it can be said that appellant has falsely been implicated in the present case with malicious intention and he may be enlarged on bail by this Court sympathetically and the present appeal may be allowed.

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Several other submissions in order to demonstrate the falsity of the allegations made against the appellant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been

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touched upon at length. It has been assured on behalf of the appellant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that the appellant has no previous criminal history, which fact has been stated in para-18 of the affidavit filed in support of the bail application. It has been argued that the appellant is in jail since 13.10.2022 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

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Learned A.G.A. opposed the prayer for bail but he is unable to dispute the contentions raised by learned counsel for the appellant.

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After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also in absence of any convincing material to indicate the possibility of tampering with the evidence and considering the fact that prosecutrix in her statements recorded under Sections 161 and 164 Cr.P.C. has admitted this fact that she went with the appellant on her own sweet will as she was in relation with him for more than two years and when the marriage of prosecutrix was going to be solemnized then left her house and went with the appellant; the prosecutrix has not levelled any allegation against the appellant regarding commission of rape; there appears force in the submission of the learned counsel for the appellant that as per the medical report of the prosecutrix there is no any external or internal injury found on her body and as per her medical report she was found to be about 17 years, thus, taking benefit of two years either side, the prosecutrix is major and she knows consequences very well; prosecutrix and appellant are consenting party and they know each other very well much prior to the incident, she went with the applicant on her own sweet will, thus, no case under Sections 363, 366 I.P.C. read with Section 3(2)5 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is made out and further considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the case of Dataram Singh vs. State of UP and another , reported in (2018) 3 SCC 22, this

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Court is of the view that the learned court below has failed to appreciate the material available on record and the impugned order passed by the court below is liable to be set aside.

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Accordingly, the appeal is allowed . Consequently, the impugned judgment and order dated 09.01.2023 passed by the learned Special Judge, (S.C./S.T. Act), Sitapur in Bail Application No. 686 of 2022, arising out of Case Crime No. 230 of 2022, under Sections 363, 366 I.P.C. and Section 3(2)5 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Kotwali Dehat, District Sitapur is hereby reversed and set aside .

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Let the appellant, Vimal, be enlarged on bail in Case Crime No. 230 of 2022, under Sections 363, 366 I.P.C. and Section 3(2)5 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Kotwali Dehat, District Sitapur with the following conditions:-

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(i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned.

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(ii) The appellant shall appear and strictly comply following terms of bond executed under section 437 sub section 3 of Chapter- 33 of Cr.P.C.:-

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(a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter.

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(b) The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

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(c) The appellant 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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(iii) The appellant shall cooperate with investigation /trial.

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(iv) The appellant 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 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.

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

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his absence, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

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(vi) In case, the appellant misuses the liberty of bail during trial, in order to secure his presence, proclamation under section 82 Cr.P.C. is issued and the appellant 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 of the Indian Penal Code.

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(vii) The appellant shall remain present, 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 Cr.P.C. If in the opinion of the trial court absence of the appellant 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.

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The trial court is also directed to expedite the trial of the aforesaid case, within a period of one year from today, by following the provisions of Section 309 Cr.P.C., strictly without granting any unnecessary adjournments to the parties, in case there is no other legal impediment.

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Order Date :- 13.7.2023 Mustaqeem

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Digitally signed by :- MOHD MUSTAQEEM KHAN High Court of Judicature at Allahabad, Lucknow Bench

Vimal v. State of U.P. Thru. Its Prin. Secy. Home, Lko. and Another

Case brief

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Vimal v. State of U.P. Thru. Its Prin. Secy. Home, Lko. and Another

Case brief

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