Allowed

Jagat Narayan Dubey v. State of U.P. and 3 Others

Allahabad HC5 Jul 2023BAIL/18293/2023

Case brief

AI extract

What is this about?

The High Court allowed the bail application of Jagat Narayan Dubey, an accused in a rape and POCSO case, who had been in jail since January 2023. Relying on the principle of parity with co-accused already granted bail and noting the trial court's summons without vital comment, the court held there was no material warranting continued incarceration.

What did the court decide?

Jagat Narayan Dubey released on bail on furnishing personal bond with two sureties, subject to strict conditions regarding court attendance and no interference with investigation or witnesses.

Jagat Narayan Dubey Vs State of U.P. and 3 Others — Dowry and Cruelty | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:132085

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Court No. - 65

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 18293 of 2023

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Applicant :- Jagat Narayan Dubey Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ajai Kumar Singh Kushwaha,Abhai Kumar Tiwari Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Abhai Kumar Tiwari, the learned counsel for applicant and the learned A.G.A. for State.

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Supplementary affidavit filed by the learned counsel for applicant in Court today is taken on record.

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This application for bail has been filed by applicant Jagat Narayan Dubey seeking his enlargement on bail in Case Crime No. 02 of 2021, under Sections 376, 506 IPC and 3/4 POCSO Act, Police Station- Ubhaon, District Ballia during pendency of trial.

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At the very outset the learned A.G.A. contends that notice of present application for bail has been served upon first informant/opposite party-2. However, inspite of the service of notice, no one has put in appearance on behalf of opposite party-2 to oppose this application for bail.

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Record shows that in respect of an incident which is alleged to have occurred on 8.6.2016, a delayed F.I.R. dated 3.1.2021 was lodged by first informant Mausam Mishra (prosecutrix) and was registered as Case Crime No. 02 of 2021, under Sections 376, 506 IPC and 3/4 POCSO Act, Police Station- Ubhaon, District Ballia. In the aforesaid F.I.R. three persons namely, Bhapan Tiwai, Jagat Narayan Dubey, Rajesh Kumar Gupta, have been nominated as named accused.

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The gravamen of the allegations made in the F.I.R. is to the effect that named accused forcibly dislodged the modesty of prosecutrix by committing rape upon her.

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After registration of aforesaid F.I.R, Investigating Officer proceeded with statutory investigation of aforesaid case crime number in terms of Chapter XII Cr.P.C. During pendency of

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aforesaid investigation, named accused Bhupan Tewari filed Criminal Misc. Anticipatory Bail Application U/S 439 Cr.P.C. No. 9700 of 2022 (Bharat Das @ Mauni Baba Chela Shri Sarveshwar Das Vs. State of U.P.). The said application for anticipatory bail was allowed by this Court vide order dated 20.10.2022. For ready reference, same is reproduced herein under:

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"Heard Sri Ashok Mehta, learned Senior Counsel for the applicant assisted by Sri Pradeep Singh Sisodia, and Smt. Ladli Pandey, learned A.G.A. for the State as well as perused the record.

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The present application has been moved seeking anticipatory bail in Case Crime no. 0002 of 2021, under Sections 376 IPC and 3/4 POCSO Act, Police Station- Ubhavan, District Ballia, with the prayer to enlarge him on anticipatory bail.

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As per prosecution story, the applicant is said to have sexually assaulted the victim on 8.6.2016 at about 10.00 pm being Mahant of the said Math.

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Learned Senior Counsel for the applicant has argued that the applicant is absolutely innocent and has been falsely implicated in the present case with a view to cause unnecessary harassment and to victimize him. Learned Senior Counsel has further stated at Bar that the present case has been instituted out of rivalry on behalf of one fake Mahant Raghvendra Das, who was evicted from the said Math on 18.11.2018. Learned Senior Counsel has placed reliance on the report of the District Magistrate, Ballia dated 18.11.2018, wherein it has been categorically stated that the said Mahant Raghvendra Das was a fake person. The applicant was not in picture till 18.11.2018. As the applicant had taken charge as Mahant on 18.11.2018, there is no question of him committing the said offence on 8.6.2016. The prosecution story stands falsified on this count itself. The applicant had taken the charge of the Math from 18.11.2018. Learned Senior Counsel has further stated that the FIR is belatedly lodged in the year 2020 after filing an application under Section 156(3) Cr.P.C. The said inordinate delay of four and a half years in lodging the FIR has not been explained. The applicant being a servant of deity, has been falsely implicated. There is no criminal history of the applicant. It is further stated that applicant is co-operating in the investigation and is ready to cooperate in future also. There is no likelihood of the applicant repeating the said offence, if any. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length.

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Learned A.G.A. has opposed the prayer for grant of anticipatory bail on the ground that the statement of the victim recorded under Section 164 Cr.P.C. categorically corroborates the prosecution story, but is unable to dispute the fact that the FIR is delayed by more than four years and also the facts with respect to the report of the District Magistrate, Ballia dated 18.11.2018. Learned A.G.A. has also not disputed the fact that applicant has no criminal history.

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On due consideration to the arguments advanced by learned counsel for the parties and in view of the law laid down by the Apex Court in the case of "Sushila Aggarwal Vs. State (NCT of Delhi)-(2020) 5 SCC 1", the applicant is entitled to be released on anticipatory bail in this case.

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In view of the above, the anticipatory bail application of the applicant is allowed. In the event of arrest, let the accused-applicant Bharat Das @ Mauni Baba Chela Shri Sarveshwar Das be released forthwith in the aforesaid case crime (supra) on bail on furnishing a personal bond with two sureties each in

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the like amount to the satisfaction of the court concerned/Station House Officer of the police station concerned with the following conditions:-

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1. that the applicant shall make himself available for interrogation by a police officer as and when required;

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2. that 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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3. that the applicant shall not leave India without the previous permission of the court;

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4. that in case charge-sheet is submitted the applicant shall not tamper with the evidence during the trial;

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5. that the applicant shall not pressurize/ intimidate the prosecution witness;

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6. that the applicant shall appear before the trial court on each date fixed unless personal presence is exempted;

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In case of breach of any of the above conditions the court below shall have the liberty to cancel the bail.

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It is made clear that observations made hereinabove are exclusively for deciding the instant anticipatory bail application and shall not affect the trial or deciding the regular bail application. "

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Similarly, co-accused Rajesh Kumar Gupta also approached this court by means of Criminal Misc. Anticipatory Bail Application U/S 439 Cr.P.C. No. 1495 of 2023 (Rajesh Kumar Guopta Vs. State of U.P. and three others). The aforesaid application was allowed by this Court vide order dated 10.4.2023. For ready reference, the order dated 10.4.2023 is extracted herein under:

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"Heard learned counsel for the applicant as well as learned AGA for the State and perused the material placed on record.

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This anticipatory bail application (under section 438 Cr.P.C.) has been moved seeking bail in Case No.23 of 2021 (Mausam Mishra vs. Bhupan Tiwari and others) arising out of Case Crime No.2 of 2021, under sections 376, 506 I.P.C. & Section 3/4 of the Protection of Children from Sexual Offences Act, Police Station Ubhaon, District Ballia, during the pendency of trial.

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It is submitted that in this case applicant is innocent and has committed no offence. Further submitted that the present F.I.R. was lodged after delay of four years without any explanation on false facts. It is further submitted that coaccused Bharat Das @ Mauni Baba Chela Shri Sarveshwar Das has already been enlarged on bail by co-ordinate Bench of this Court in Criminal Misc. Anticipatory Bail Application No.9700 of 2022 vide order dated 20.10.2022 and the case of the present applicant is on similar footing. Now after investigation charge sheet has been filed before the learned court concerned as a result in pursuance of the process of the court the applicant is under apprehension of imminent arrest. In case, the applicant is released on bail, he would not misuse the liberty of bail and would cooperate with the trial.

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Learned A.G.A. opposed the prayer for anticipatory bail.

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Considering the facts and circumstances of the case, submissions made by learned counsel for the applicant as well as learned A.G.A., perusal of record, delay in lodging the F.I.R. and the fact that co-accused has already been granted anticipatory bail and the case of the present applicant is on similar footing, therefore, the applicant is entitled to be released on anticipatory bail in this case during the pendency of trial.

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The applicant- Rajesh Kumar Gupta, shall be released on anticipatory bail on furnishing a personal bond of Rs. 25,000/- with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

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(i) The applicant shall appear before the learned court everyday when case is fixed unless exempted; (ii) 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 from disclosing such facts to the Court or to any police office;

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(iii) The applicant shall not leave India without the previous permission of the Court and if he has passport, the same shall be deposited by him before the S.S.P./S.P. concerned.

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In default of any of the conditions, this order will automatically stand vacated"

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On the aforesaid premise, learned counsel for applicant contends that two of the named accused have already been granted the benefit of anticipatory bail. The case of present applicant is similar and identical to aforesaid co-accused who have already been granted the enefit of anticipatory bail by this Court. There is no such distinguishing feature on the basis of which case of present applicant can be so distinguished from aforesaid co-accused so as to deny him bail. He, therefore, contends that for the facts and reasons mentioned in the orders dated 20.10.2022 and 10.4.2023, present applicant is also liable to be enlarged on bail on the ground of parity.

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It is next contended that applicant has criminal history to his credit but the same has been duly explained in the second supplementary affidavit filed today in Court. Applicant is in jail since 16.1.2023. As such, he has undergone almost 5 and 1/2 months of incarceration. After investigation, the police has submitted the police report under section 173 (2) Cr.P.C. (final report). Thereafter a protest petition was filed by first informant. Ultimately Court below rejected the Police report and summoned the named accused vide order dated 22.3.2022. However, up to this stage, there is no such material warranting custodial arrest of applicant during course of trial. In case applicant is enlarged on bail, he shall misuse the liberty of bail and shall co-operate with trial.It is thus urged that applicant be enlarged on bail.

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Per contra, the learned A.G.A has opposed the present application for bail. However, he could not dislodge the factual and legal

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submissions urged by the learned counsel for applicant with reference to the record at this stage.

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Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evident, nature and gravity of offence as well as complicity of applicant, accusation made coupled with the fact that two of the named accused have already been granted the benefit of anticipatory bail by this Court, case of present applicant is similar and identical to aforesaid co-accused, there being no such distinguishing feature to distinguish the case of present applicant so as to deny him bail, the police upon completion of investigation, ultimately submitted final report, applicants have been summoned by Court below on the basis of cognizance taken by Court below after rejecting the police report and upon the protest petition filed by first informant, but without making any comment on the merits of the case, applicant has made out a case for bail.

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Accordingly, the bail application is Allowed .

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Let the applicant Jagat Narayan Dubey , be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

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(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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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(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

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(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

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(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF

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THE CASE, (2) FRAMING OF CHARGE AND (3) RECORDING OF STATEMENT UNDER SECTION 313 CR.P.C. IF IN THE OPINION OF THE TRIAL COURT 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 AGAINST THE HIM/HER IN ACCORDANCE WITH LAW.

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(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

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However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

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Order Date :- 5.7.2023

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Arshad

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Digitally signed by :- ARSHAD MAHMOOD High Court of Judicature at Allahabad

Jagat Narayan Dubey v. State of U.P. and 3 Others

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Jagat Narayan Dubey v. State of U.P. and 3 Others

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