Partly allowed

Jaishree @ Mantu v. State of U.P. and Another

Allahabad HC3 Apr 2023A482/9814/2023

Case brief

AI extract

What is this about?

The High Court allowed an application under Section 482 Cr.P.C. It declined to interfere with the Trial Court's order adding a rape charge but quashed the subsequent order requiring the applicant to secure fresh bail. The applicant continues on existing bail unless cancelled under Section 439(2) Cr.P.C.

What did the court decide?

Quashment of order dated 27.02.2023 requiring applicant to secure fresh bail; applicant continues on existing bail.

Jaishree @ Mantu Vs State of U.P. and Another — Child Sexual Offences (POCSO) | Allahabad HC (2023)

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Court No. - 64

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Case :- APPLICATION U/S 482 No. - 9814 of 2023

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Applicant :- Jaishree @ Mantu Opposite Party :- State of U.P. and Another Counsel for Applicant :- Virendra Kumar Yadav Counsel for Opposite Party :- G.A.

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Hon'ble J.J. Munir,J.

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The applicant has come up challenging an order dated 17.02.2023 passed by the Additional District and Sessions Judge/Special Judge, POCSO Act, Court No. 3, Varanasi adding a charge under Section 376 of the Penal Code in exercise of powers under Section 216 Cr.P.C.

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The applicant is facing trial under Sections 363, 366, 506, 309, 120-B IPC and Section 4 of the POCSO Act, P.S. Rohaniya, District Varanasi. During trial, the prosecutrix, who has testified as PW-1, has said in her testimony that she was ravished by the accused and on the basis of the said evidence, the Trial Judge has added a charge under Section 376 of the Penal Code. It has also been remarked that the applicant already stands charge-sheeted with the offence punishable under Section 4 of the POCSO Act, which is substantially the same.

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Heard Mr. Virendra Kumar Yadav, learned counsel for the applicant and Mr. D.K. Srivastava, learned AGA appearing on behalf of the State.

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From a perusal of the testimony of the prosecutrix, a copy of which is annexed at page no. 30-A of the paper book, it is evident that she has come up with an allegation of rape against the applicant. It is on that basis, the learned Judge has added a charge under Section 376 IPC.

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In the opinion of this Court, there is no error or manifest illegality in the orders adding to the charge based on the prosecutrix's testimony. Learned counsel further submits that the next order that was passed on 27.02.2023, the Trial Judge has required the applicant to secure fresh bail in view of the added section. He submits that he is on bail and has not misused it. He is regularly attending. It must be remarked that bail is granted in an offence, and, not in a particular section. However, in case the Police or the Trial Court feel that in

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view of the altered charge under the added sections bail earlier granted cannot be enjoyed by an accused, resort has to be taken to the provisions of Section 439(2) Cr.P.C. to cancel the bail. In this connection, reference may be made to the decision of the Supreme Court in Manoj Suresh Jadhav and others vs. State of Maharashtra (2019) 17 SCC 362 . In Manoj Suresh Jadhav ( supra ), it was held:

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"2. During the course of investigation, the police added another offence under section 376 of the Penal Code, 1860 in the FIR against the petitioners and rearrested them. Being aggrieved, the petitioners filed writ petition before the High Court which was dismissed. Hence, the special leave petition.

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3. We have heard learned counsel appearing for the parties and perused the record.

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4. It is not permissible for the respondent-State to simply re-arrest the petitioners by ignoring order dated 02.06.2016 passed by the learned Additional Sessions Judge, Pune, which was in force at that time.

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5. We direct that the petitioners shall be released on bail on the same condition/s as imposed in the aforesaid order dated 02.06.2016 by the learned Sessions Judge, Pune.

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6. Having regard to the provisions of Section 439(2) of the Code of Criminal Procedure, the respondent-State is at liberty to apply for cancellation of bail and seek the custody of the petitioners-accused."

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In this view of the matter, while declining to interfere with the impugned order dated 17.02.2023, this Court is of opinion that the order dated 27.02.2023, though not formally impugned, ought to be quashed. The order dated 27.02.2023 insofar as it requires the applicant to secure bail afresh in the added section is hereby quashed . It is ordered that the applicant, who is on bail, shall continue to remain on bail in terms of the bail order earlier passed in his favour, unless that bail order is cancelled in accordance with law under Section 439 (2) Cr.P.C.

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This application is allowed in part in terms of the aforesaid orders.

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Order Date :- 3.4.2023 Deepak

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Digitally signed by :- DEEPAK KUMAR PANDEY High Court of Judicature at Allahabad

Jaishree @ Mantu v. State of U.P. and Another

Case brief

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Jaishree @ Mantu v. State of U.P. and Another

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