Allowed

Ram Niwas v. State of U.P. and 3 Others

Allahabad HC12 Jul 2023BAIL/19743/2023

Case brief

AI extract

What is this about?

The Allahabad High Court allowed a bail application in a rape and attempt to commit rape case. The court held that since the applicant was already on bail for principal sections and Section 452 IPC was added later by mistake of counsel, the rejection below was erroneous. The court noted the victim's contradictory statements and lack of injury. Bail was granted on personal bond and two sureties.

What did the court decide?

Bail granted to the applicant on furnishing a personal bond and two sureties in like amount with specific conditions regarding absence and trial conduct.

Ram Niwas Vs State of U.P. and 3 Others — Pension and Retirement Benefits | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:137903

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Court No. - 65

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 19743 of 2023

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Applicant :- Ram Niwas Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Rakesh Kumar Mishra Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. R.K. Mishra, the learned counsel for applicant and the learned A.G.A. for State.

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Perused the record.

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This appilcation for bail has been filed by applicant seeking his enlargement on bail in Case Crime No. 100 of 2021, under Section 376, 452 IPC and under section 3/4 POCSO Act, Police StationBaniyather, District Sambhal during the pendency of trial.

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At the very outset, the learned counsel for applicant submits that applicant was enlarged on bail under sections 376, 511, 20-B IPC and Sections 3/4 POCSO Act vide order dated 1.2.2023 passed by this Court in Criminal Misc. Bail Application No. 26490 of 2021 (Ram Niwas Vs. Rakesh Kumar Mishra). For ready reference, the order dated 1.2.2023 is reproduced herein under:

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"The present bail application has been filed on behalf of the accused/ applicant in Case Crime No.100 of 2021, under Sections 376, 511, 120-B I.P.C. and Section 3/4 of the POCSO Act, Police Station Baniyather, District Sambhal with the prayer to enlarge him on bail.

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Heard Shri Ritesh Kumar Singh, Advocate holding brief of Shri Rakesh Kumar Mishra, learned counsel for the accused/ applicant and Shri D.P.S. Chauhan, learned A.G.A. appearing on behalf of the State respondent.

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It is submitted by the learned counsel for the accused/ applicant that the accused/applicant is innocent and has falsely been implicated in the case due to enmity with the brother-in-law of the accused applicant as there was dispute over sewage line between complainant and the brother-in-law of the accused applicant. In the F.I.R., allegation of attempt to commit rape has been mentioned and the victim in her statement recorded under Section 161 Cr.P.C. also has stated that the applicant attempted to commit rape upon her. Thereafter the victim in her statement recorded under Section 164 Cr.P.C. has made improvement to the effect that the accused applicant committed rape upon her. It is further submitted that in medico-legal examination of the victim, no injury of any kind either external or internal was found. The accused

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applicant is in jail since 3.5.2021. He has no criminal history, as has been mentioned in paragraph 22 of the affidavit filed alongwith the bail application. Hence, the applicant be released on bail.

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Learned A.G.A. opposed the bail application and submitted that the victim was raped as she has stated in her statement recorded under Section 164 Cr.P.C. that the accused applicant committed rape upon her. Hence, the bail application should be rejected.

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Considered the rival submissions made by the parties' counsel and perused the material available on record.

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It transpires from perusal of record that in the F.I.R., there is no allegation of rape. Only allegation is there of attempt to commit rape. In her statement recorded under Section 161 Cr.P.C., the victim has made allegation of attempt to commit rape while in her statement recorded under Section 164 Cr.P.C., she has levelled allegations of rape. In the medico-legal examination of the victim, no injury of any kind was found either external or internal part of her body.

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Considering all the facts and circumstances of the case as mentioned above specially the fact that the victim has made contradictory statements and no injury was found on the body of the victim in medico-legal examination, without commenting on merits, I am of the view that the accused/ applicant deserves to be enlarged on bail.

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Accordingly, the bail application filed on behalf of applicant is allowed.

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Let the applicant - Ram Niwas involved in Case No.100 of 2021 (supra) be released on bail on his furnishing a personal bond and 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 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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(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

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(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant 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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(iv) 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 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 him in accordance with law.

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(v)The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

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(vi) The computer generated copy of such order shall be self attested by the counsel of the party concerned.

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(vii) 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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It may be observed that in the event of any breach of the aforesaid conditions, the court below shall be at liberty to proceed for the cancellation of applicant's bail.

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It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case. "

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It is submitted by learned counsel for applicant that subsequently, section 452 IPC was added in the charge-sheet submitted against applicant. However, due to mistake of counsel for applicant representing applicant before Court below, the bail application on behalf of applicant was moved in all the sections for seeking his enlargement on bail. He further submits that this was an inadvertent error on the part of learned counsel for applicant. Court below has passed the bail rejection order dated 1.2.2023 without considering the aforesaid. He, therefore submits that since applicant has already been enlarged on bail under the Principal Sections, thereafter, applicant is liable to be enlarged on bail. It is thus urged that present application for bail is liable to be allowed. In case the applicant is enlarged on bail he shall not misuse the liberty of bail and shall co-operate with trial.

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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 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, evidence, nature and gravity of offence as well as complicity of applicant, accusation made coupled with the fact that applicant was already been enlarged on bail vide order dated 1.2.2023, under sections 376, 511 IPC and Section 3/4 POCSO Act. Section 452 was subsequently added, at the time of submission of charge sheet on 28.6.2021. The counsel for applicant before court below should have filed the bail application of applicant only under section 452 IPC. Due to inadvertence all the sections were mentioned in the bail application. The Court below has passed the bail rejection order without considering the order dated 1.2.2023. The Court below has thus exercised its jurisdiction in casual and caviliar manner and not diligently, but without making any comments on the merits of the case, applicant has made out a case for bail. Accordingly, the bail application is Allowed .

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Let the applicant Ram Niwas , 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 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 :- 12.7.2023

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Arshad

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

Ram Niwas v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Ram Niwas v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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