Allowed

Sandeep v. State of U.P. and 3 Others

Allahabad HC1 Jun 2023BAIL/7854/2023

Case brief

AI extract

What is this about?

The High Court granted bail to Sandeep, an applicant accused under Sections 376, 120-B IPC and Section 5(J) of POCSO Act. The court relied on Supreme Court precedents regarding personal liberty and speedy trial, allowing bail subject to standard conditions preventing tampering and ensuring presence in court, noting the applicant had been in custody since September 2022.

What did the court decide?

Released on personal bond and two sureties subject to conditions of not tampering with evidence, no intimidation of witnesses, and appearing for trial.

Sandeep Vs State of U.P. and 3 Others — Child Sexual Offences (POCSO) | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:123636

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Court No. - 76

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7854 of 2023

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Applicant :- Sandeep Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Rajesh Dwivedi Counsel for Opposite Party :- G.A.

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Hon'ble Nalin Kumar Srivastava,J.

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None appears for the informant/complainant despite service of notice.

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

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It is alleged in the F.I.R. that the minor daughter of the informant was raped by the co-accused Roop Singh on 8.2.2016 at about 10:00 a.m. and on that time, the co-accused Indira Devi had closed the door from outside. When she was unconscious, obscene photographs were also taken and subsequently the said Roop Singh on the basis of obscene photographs blackmailed the prosecutrix and made physical relationship with her and when she became pregnant, he administered her some medicines and she got aborted. It is also alleged that when this F.I.R. was not lodged, meanwhile all the accused persons including the present accused applicant made an assault upon the prosecutrix and also snatched her golden chain and tops. An application under section 156 (3) Cr.P.C. was given to the court and F.I.R. was lodged.

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It is submitted by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case. He has not committed the present offence. It is further submitted that the entire prosecution story is false and concocted and no offence has been committed by the applicant. It is further submitted that no role of committing rape upon the minor prosecutrix has been alleged against the applicant. In her statement recorded under section 164 Cr.P.C., the prosecutrix has assigned the role of only assault and threatening to the present applicant. It is further submitted that during the course of investigation, the investigating officer did not find any credible evidence against the present applicant and final report into the matter was submitted

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and subsequently on submission of protest petition, which was treated as criminal complaint by the court, the court straightway summoned the applicant along with other co-accused persons to face trial. F.I.R. prior to the present case was lodged by the applicant's side against the informant's side as case crime no.492 of 2016 under Sections 354, 325, 308, 342, 394 IPC wherein after trial the accused persons were convicted by the court and the appeal is pending and present F.I.R. is a counter blast of the said incident. It is further submitted that the co-accused Ramkishan has been granted bail by this Court vide order dated 5.5.2023 passed in Crl. Misc. Bail Application No.7667 of 2023. It is further submitted that the applicant has been languishing in jail since 22.9.2022 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.

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On the other hand, learned AGA vehemently opposed the prayer for bail but could not dispute this fact that despite continuing offence of rape since the year 2019, the prosecutrix never made any complaint to her parents or family members in this regard.

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

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

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"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."

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

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"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.

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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.

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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 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."

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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 .

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Let the applicant Sandeep involved in Case Crime No.300 of 2018, under Sections 376/120-B, 313/120-B IPC and Section 5(J) of POCSO Act read with Section 120-B IPC, Police Station Mangalpur, District - Kanpur Dehat 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

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sureties be verified.

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

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

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

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(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.

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(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.

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

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It is made clear that the submissions and observations made in this order are only for deciding the bail application. Trial Court while deciding the trial will not be influenced with the same.

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Order Date :- 1.6.2023 ss

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Digitally signed by :- SANDEEP SHARMA High Court of Judicature at Allahabad

Sandeep v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Sandeep 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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