Allowed

Bhagwandeen@ Dev Kumar v. State of U.P. and Another

Allahabad HC21 Jun 2023BAIL/24405/2023

Case brief

AI extract

What is this about?

This bail application was allowed by the High Court. Considering the six-month delay in FIR lodging, contradictions in the prosecutrix's statements, and the incarcerated period of the accused, the court granted bail despite the heinous nature of the offense, following Supreme Court precedents on personal liberty.

What did the court decide?

Released on bail by furnishing a personal bond and two sureties each in the like amount subject to standard bail conditions.

Bhagwandeen@ Dev Kumar Vs State of U.P. and Another — Bail and Remand | Allahabad HC (2023)

¶1

Neutral Citation No. - 2023:AHC:127857

¶2

Court No. - 51

¶3

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 24405 of 2023

¶4

Applicant :- Bhagwandeen@ Dev Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kameshwar Singh,Sudhanshu Kumar Singh

¶5

Counsel for Opposite Party :- G.A.

¶6

Hon'ble Nalin Kumar Srivastava,J.

¶7

Heard learned counsel for the applicant as well as the learned A.G.A for the State and perused the record.

¶8

In this case, it has been alleged in the F.I.R. that the accused applicant committed rape of the prosecutrix in here own house on 18.02.2022 and he repeated the same on several occasions thereafter by blackmailing and threatening the prosecutrix. It is further alleged that on 14.05.2022, the accused took the prosecutrix and kept her in the house of his relative for three days. Missing Report was lodged on 16.05.2022 by her husband. For the sake of reputation of her family, the prosecutrix kept silent and subsequently, after about 6 months, an application under Section 156(3) Cr.P.C., was moved before the Magistrate Court. By the order of the Court, the case was lodged.

¶9

It is submitted by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case. It is further submitted that as a matter of fact, the husband of the prosecutrix had taken Rs. 20,000/- and Payal of his wife from the present accused-applicant. When the complaint was lodged by the accused-applicant against him, the present FIR was lodged as a counter-blast after more than five months of the alleged incident. It is further submitted that no evidence of rape has been found in the medical examination of the prosecutrix and the medical evidence does not support the prosecution version. It is further submitted that the whole prosecution story is wholly improbable and unnatural. It is further submitted that no sufficient explanation has been made by the prosecution for delay in lodging the FIR. The accused is languishing in jail since 19.01.2023.

¶10

On the other hand, the learned AGA vehemently opposed the

¶11

prayer for bail, however, could not dispute the facts as submitted by the learned counsel for the accused-applicant.

¶12

I have considered the rival submissions made by the learned counsel for the parties.

¶13

7. In Union of India Vs. K.A. Najeeb (2021) 3 SCC 713 , the Hon'ble Apex Court has observed that:-

¶14

"15. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, the Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail."

¶15

8. In Sanjay Chandra vs. Central Bureau of Investigation, (2012) 1 SCC 40 , the Hon'ble Supreme Court has held as under :

¶16

"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

¶17

22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.

¶18

23. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused

¶19

has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson."

¶20

In this matter, as is evident from the record prosecutrix is major. There are contradictions in F.I.R. version and her statements recorded under Sections 161 and 164 CrPC. F.I.R. was lodged six months after the incident without any plausible explanation regarding delay. Applicant is in jail since 19.01.2023. Hence, keeping in view the nature of the offence, evidence, complicity of the accused, the dictum of Hon'ble Apex Court in the aforesaid cases as well as in the case of Dataram Singh vs. State of U.P. and another, (2018) 3 SCC 22 and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed .

¶21

Let the applicant Bhagwandeen@ Dev Kumar involved in Case Crime No. 1122 of 2022, under Sections 452, 342, 376, 506 IPC, P.S. Kotwali Nagar, District - Banda be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.

¶22

(i). The applicant will not tamper with the evidence during the trial.

¶23

(ii). The applicant will not pressurize/ intimidate the prosecution witness.

¶24

iii). The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.

¶25

(iv). The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.

¶26

(v). 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.

¶27

In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.

¶28

It is made clear that the submissions and observations

¶29

made in this order are only for deciding the bail application. Trial Court while deciding the trial will not be influenced with the same.

¶30

Order Date :- 21.6.2023 Aditya Tripathi

¶31

Digitally signed by :- ADITYA TRIPATHI High Court of Judicature at Allahabad

Bhagwandeen@ Dev Kumar v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Bhagwandeen@ Dev Kumar v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Arun Pratap @ Arun Pratap Singh Vs State of U.P. and Another

Kavita Bind Vs State of U.P.

Dinesh Kumar Vs State of U.P.

Khachera Singh Vs State of U.P.

Subham Mahaur Vs State of U.P.

Smt. Dolly Chaudhary and Another Vs State of U.P. and 2 Others