Allowed

Prashant Saxena v. State of U.P.

Allahabad HC10 Aug 2023BAIL/19065/2023

Case brief

AI extract

What is this about?

In this bail application under CrPC, the Allahabad High Court granted bail to an accused in a rape case where a dispute existed between the parties. The court noted the stayed investigation proceedings and the applicant's history of prior cases with the complainant before releasing him on personal bond and sureties.

What did the court decide?

The applicant was released on bail by furnishing a personal bond and two sureties in like amount to the satisfaction of the court.

Prashant Saxena Vs State of U.P. — Bail and Remand | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:161295

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Court No. - 70

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 19065 of 2023

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Applicant :- Prashant Saxena Opposite Party :- State of U.P. Counsel for Applicant :- Awadhesh Kumar Saxena,Avijit Saxena Counsel for Opposite Party :- G.A.,Bijay Singh Sachan,Rajendra Kumar Dubey,Santosh Kumar Pandey,Sarvesh

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Hon'ble Sameer Jain,J.

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Heard Sri Kamal Krishna, learned Senior Advocate, assisted by Sri Awadhesh Kumar Saxena, learned counsel for the applicant, Sri Santosh Kumar Pandey, learned counsel for the informant and Dr.S.B.Maurya learned AGA-I, for the State.

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The instant bail application has been filed on behalf of the applicant with the prayer to release him on bail in Case Crime No.597 of 2018 under Sections 376 and 506 IPC, Police Station Fatehgarh Kotwali, District Farrukhabad during pendency of the trial.

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FIR of the present case was lodged against the applicant on 24.7.2018 and according to the FIR, applicant is the 'Dever' of the informant and after the death of her husband, i.e., brother of the applicant, he started harassing her with intention to make illicit relationship with her and on 8.7.2018 informant returned back to her paternal home and on 9.7.2018 applicant arrived at her paternal home and proposed her for marriage and thereafter by playing fraud he committed rape with her and thereafter number of times under the false promise of marriage he sexually exploited her and subsequently refused to perform marriage with her , i.e., the informant.

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Learned counsel for the applicant submits that entire

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allegation of rape and sexual exploitation made against the applicant is totally false and baseless and admittedly applicant is 'Dever' of the informant and number of cases have been lodged by the informant against the applicant including the cases under Sections 354 and 498A IPC and only due to this reason with mala fide intention applicant has been made accused in the present matter.

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He further submits that even if entire prosecution case is accepted then also it appears that informant, i.e., prosecutrix of the case, was consenting party and at this stage it cannot be said that against her wishes physical relationship was developed between applicant and informant

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He further submits that admittedly informant of the case is 'Bhabhi' of applicant and she is major and, therefore, it is hard to believe that against her wishes applicant would either commit rape with her or make physical relationship with her.

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He further submits that as per the allegation rape was committed by applicant with the informant on 8.7.2018 in her paternal home but in spite of that FIR of the present case was lodged on 24.7.2018, i..e, after more than two weeks and this fact itself shows that FIR of the present case is based on false and concocted story.

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He further submits that although there is allegation that applicant threatened the informant that he has prepared her indecent videos and obscene photographs and he will post the same on social media but during investigation no such indecent and obscene photographs or videos could be recovered and this fact again shows that entire allegation made against the applicant is totally false and baseless

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He further submits that after lodgement of the FIR of the present case, applicant challenged the FIR before this Court in writ jurisdiction and his arrest was stayed by Division Bench of this Court till the submission of report under Section 173(2) Cr.P.C. and after submission of charge sheet against the applicant, applicant again knocked the door of this Court by filing Criminal Misc. Application U/s 482 No. 19546 of 2019 challenging the cognizance order and charge sheet filed against the applicant and on 16.5.2019 Coordinate Bench of this Court was pleased to issue notice to the informant of the case and till the next date of listing, entire proceedings pending against the applilcant was stayed but unfortunately the stay order dated 16.5.2019 could not be extended and in view of Asian Resurfacing of Road Agency Private Limited and another Vs. Central Bureau of Investigation (2018) 16 SCC 299, NBW was issued against the applicant and thereafter applicant had to surrender before the court concerned on 24.3.2023 and when he applied for bail, his bail application was dismissed.

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He further submits that even till date Criminal Misc.Application U/s 482 Cr.P.C. No.19546 of 2019 filed by applicant is still pending before this Court and it is listed today along with the instant bail application.

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He further submits that although applicant is having criminal history of about 7 cases but his criminal history has been explained in paragraph-19 to the affidavit filed in support of the present bail application and out of 7 cases, 3 cases were filed by the informant of the case and other cases were of petty nature.

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He further submits that applicant is in jail in the present matter since 24.3.2023, i.e., for the last about more than 4 months

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and, therefore, considering the totality of the facts and circumstances of the case, he may be enlarged on bail.

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Per contra, learned AGA as well as learned counsel for the informant opposed the prayer for bail and submitted that applicant is the 'Dever' of the informant and after the death of her husband, he misused his position and due to the harassment of the applicant, informant had to leave her matrimonial home and had to start living in her paternal home but applicant also reached at her paternal home and committed rape with her in her paternal home and thereafter he continuously sexually exploited her under false promise of marriage and in the FIR and in both the statements of the victim recorded under Section 161 and 164 Cr.P.C. there is allegation of rape and sexual exploitation against the applilcant.

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Learned counsel for the informant further submits that from the FIR and the statements of the prosecutrix recorded during investigation it could not be reflected that she was consenting party and, therefore, considering the seriousness of the allegation made against the applicant, he does not deserve bail.

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I have heard learned counsel for the parties and perused the record of the case.

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Although, it is a case in which a 'Bhabhi' has made allegation of rape and sexual exploitation against her 'Dever' but admittedly a dispute between applicant and informant is pending and earlier informant also has filed three criminal cases against the applicant including a case under Sections 354 and 498A IPC. The story narrated by prosecution does not appear to be convincing.

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Further, arrest of applicant was stayed by a Division Bench of this Court during investigation and even after submission of the charge sheet when he challenged the charge sheet before this

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Court under Section 482 Cr.P.C. then initially after considering entire facts of the case, this Court was pleased to stay the proceeding of the case but in view of the law laid down by the Apex Court in the case of Asian Resurfacing of Road Agency Private Limited and another Vs. Central Bureau of Investigation (supra) when coercive measures were taken against the applicant then applicant had to surrender and application moved by applicant is still pending.

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Further, from the record it reflects that although there is allegation against the applicant that he threatened the informant to post her indecent videos and obscene photographs on social media but during investigation no such indecent videos or obscene photographs of the prosecutrix could be recovered.

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Further, however applicant is having criminal history of 7 cases but out of 7 cases, 3 cases were lodged by informant against him and this fact shows that a dispute is pending between both the sides.

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Further, criminal history of applicant has been duly explained in paragraph-19 to the affidavit filed in support of the present bail application and applicant is in jail 24.3.2023, i..e, for the last about more than 4 months.

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Therefore, considering the facts and circumstances of the case discussed above, in my considered view, applicant is entitled to be released on bail.

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Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.

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Let the applicant- Prashant Saxena be released on bail in the aforesaid case on furnishing a personal bond and two sureties each

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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 trial court on the dates fixed, unless his personal presence is exempted.

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(ii) The applicant shall not directly or indirectly, make 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 any police officer or tamper with the evidence.

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(iii) The applicant shall not indulge in any criminal and anti-social activity.

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In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant.

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It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial.

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Order Date :- 10.8.2023 SKM

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Digitally signed by :- SHRAVANA KUMAR MISHRA High Court of Judicature at Allahabad

Prashant Saxena v. State of U.P.

Case brief

What is this about?

What did the court decide?

Prashant Saxena v. State of U.P.

Case brief

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What did the court decide?

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