Allowed

Devanand v. State of U.P. and Another

Allahabad HC3 Oct 2023BAIL/38674/2023

Case brief

AI extract

What is this about?

This criminal bail application was heard by the Allahabad High Court. The applicant, accused of sexual offences, sought bail citing a belated FIR and his clean antecedents. The court applied precedents on unexplained delay in FIRs, finding the prosecution unsustainable. Bail was allowed.

What did the court decide?

Application for bail allowed; applicant released on personal bond and two sureties with conditions to not tamper with evidence or delay trial.

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

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Neutral Citation No. - 2023:AHC:189451

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Court No. - 65

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38674 of 2023

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Applicant :- Devanand Opposite Party :- State of U.P. and Another Counsel for Applicant :- Siddharth Srivastava Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Siddharth Srivastava, the learned counsel for applicant and the learned A.G.A. for State.

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Perused the record.

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Instant application for bail has been filed by applicantDevanand seeking his enlargement on bail in Case Crime No. 304 of 2023 under Sections 506, 376 I.P.C., Police Station- Jahanaganj, District-Azamgarh, during the pendency of trial.

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Record shows that an F.I.R. dated 05.07.2023 was lodged by first informant/prosecutrix namely Ranjana Kumari and was registered as Case Crime No. 304 of 2023 under Sections 506, 376 I.P.C., Police Station-Jahanaganj, District-Azamgarh, In the aforesaid F.I.R. applicant-Devanand has been nominated as solitary named accused.

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The gravamen of the allegations made in the F.I.R. is to the effect that applicant on the false promise of marriage enticed away the prosecutrix and thereafter, deliberately and forcibly dislodged her modesty. The F.I.R. further records that the applicant is alleged to have made obscene video of the prosecutrix and by extending threat to make the said video viral, he repeatedly dislodged the

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modesty of the prosecutrix.

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After aforementioned F.I.R. was lodged, the Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. Thereafter the statement of prosecutrix was recorded by the Investigating Officer under Section 161 Cr.P.C, which is on record at page 22 of the paper book. The prosecutrix in her aforesaid statement, has supported the F.I.R. Thereafter prosecutrix was requested for her internal medical examination. In the opinion of the Doctor, who medically examined the prosecutrix, no such signs were found on the body of the prosecutrix so as to denote commission of deliberate and forceful sexual assault upon the prosecutrix. Ultimately, the statement of the prosecutrix was recorded under Section 164 Cr.P.C. copy of which is on record at page 29 of the paper book. In her aforesaid statement, the prosecutrix has rejoined her previous statement under Section 161 Cr.P.C. referred to above. On the basis of above and other material material collected by Investigating Officer during the course of investigation he came to the conclusion that complicity of applicant is fully established in the crime in question. He accordingly submitted the charge-sheet dated 14.07.2023 whereby applicant has been charge sheeted under Sections 376, 506 I.P.C 7. Learned counsel for applicant contends that though the applicant is a named and charge sheeted accused yet he is liable to be enlarged on bail. Attention of the court was then invited to the F.IR. With reference to above, the submits that the day, date and time column of the F.I.R., no particulars have been mentioned. Similarly in the body of the F.I.R. specific date and time of the alleged incidents have not been mentioned. He therefore submits that the F.I.R. is highly belated. No explanation has been offered in

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the F.I.R. nor in the statement of the first informant/prosecutrix explaining the delay lodging the F.I.R. Referring to Paragraph 8 of the judgement of Apex Court in P. Rajagopal Vs. State of Tamilnadu, AIR 2019 SC 2866 , as well as Mandar Deepak Pawar Vs. State of Maharashtra and Another, 2022 Live Law (SC) 649 he contends that since the delay in lodging the F.I.R. has not been explained, therefore, prosecution of applicant itself cannot be maintained. It is next contended that prosecutrix is major. She is willing and a consenting party as is clearly explicit from the statement of the prosecutrix recorded under Section 161 Cr.P.C. The prosecutrix and the applicant were in love with each other since the year 2022. As per statement of the prosecutrix, she herself came and joined the applicant and not otherwise.

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Learned counsel for applicant has then referred to the High School Certificate of the prosecutrix, photocopy of the same is on record at page 44 of the paper book wherein the date of birth of the prosecutrix has been recorded as 13.03.2004. The F.I.R. giving rise to present criminal proceedings was lodged on 05.07.2023. As such, the prosecutrix was aged about 19 years on the date of lodging of the F.I.R. and therefore, she is major. Learned counsel for applicant has referred to the notary affidavit dated 15.05.2023 wherein the prosecutrix has clearly admitted that she has solemnized marriage with applicant.

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Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in custody since 10.07.2023. As such he has undergone more than two and a half months of incarceration. Police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, therefore the entire evidence sought to relied upon by the prosecution against applicant

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stands crystallised. Upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. On the above premise, the learned counsel for applicant submits that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

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Per contra, the learned A.G.A. for State has vehemently opposed the prayer for bail. He submits that since the applicant is a named as well as charge-sheet accused, therefore he does not deserve any indulgence by this Court. 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 consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant coupled with the fact that in the day, date and time column of the F.I.R. the material particulars have not been mentoned in the body of the F.I.R., specific dates and time of occurrence have also not been mentioned in the body of the F.I.R., in view of above the F.I.R. is highly belated, however neither in the F.I.R. nor in the statement of the prosecutrix/first informant any explanation has been offerred regarding delay in lodging the F.I.R., in view of law laid down by apex Court in P. Rajagopal (Supra) prosecution of applicant itself cannot be maintained, as per High School Certificate of the prosecutrix, she was major on the date of lodging of the F.I.R., as per statement of the prosecutrix recorded under Section 161 Cr.P.C. she is a willing and a consenting party, the allegations made in the F.I.R. regarding false promise of marriage and dislodging the modesty of the prosecutrix on the basis of said false premise are false by virtue of notary

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affidavit noted herein above, the period of incarceration undergone by applicant, clean antecedents of applicant, therefore irrespective of the objections raised by learned A.G.A. in opposition to the present application for bail but without expressing any opinion on the merits of the case, applicant has made out a case for bail.

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Accordingly, present application for bail is allowed .

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Let the applicant- Devanand involved in aforesaid case crime number 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 which are being imposed in the interest of justice:-

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(i) Applicant will not tamper with prosecution evidence.

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(ii) Applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.

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(iii) Applicant will not indulge in any unlawful activities.

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(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.

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The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of applicant and send him to prison

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Order Date :- 3.10.2023 YK

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

Devanand v. State of U.P. and Another

Case brief

What is this about?

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Devanand v. State of U.P. and Another

Case brief

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