Raghvendra @ Rakesh v. State of U.P

Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46362 of 2023 Applicant :- Raghvendra @ Rakesh Opposite Party :- State of U.P. Counsel for Applicant :- Ramesh Kumar Pandey Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. Heard Mr. Ramesh Kumar Pandey, the learned counsel for applicant and the learned A.G.A. for State. This application for bail has been filed by applicant Raghvendra @ Rakesh seeking his enlargement on bail in Case Crime No.347 of 2023, under Sections 376, 120-B IPC, police station Crossing Republic, district Ghaziabad, during the pendency of trial. Perused the record. Record shows that in respect of an incident which is alleged to have occurred on 26.08.2023, a delayed first information report dated 27.08.2023 was lodged by first informant-Smt. Neha i.e. prosecutrix and was registered as Case Crime No.0347 of 2023, under Sections 376, 120-B IPC, police station

Crossing

Republic,

district

Gramin (Commissionerate Ghaziabad. In the aforesaid F.I.R., two persons, namely, Rajeev and Rakesh (applicant herein) have been nominated as named accused. Learned counsel for the applicant contends that though the applicant is a named/charge-sheeted accused, inasmuch as, the charge-sheet has been submitted against applicant and co-accused Rajeev on 17.09.2023 yet he is liable to be enlarged on bail. With reference to the statements of the prosecutrix recorded under Section 161/164 CrPC, he contends that the prosecutrix is a willing and consenting party. Neither the prosecutrix was forcibly abducted nor she was kidnapped by the applicant. She herself willingly accompanied the applicant at various places. On the above premise, he contends that no offence as alleged can be said to have been committed by the applicant. Even otherwise, applicant is a man of clean antecedents, inasmuch as, he has no criminal history to his credit except the present one. The applicant is in jail since 31.08.2023. As such, he has undergone more than two months of incarceration. The police report under Section 173 (2) CrPC i.e. the charge-sheet has been submitted against the applicant, therefore the entire evidence sought to be relied upon by prosecution against applicant stands crystalized. However, up to this stage, no such circumstance has emerged on the basis of which it can be said that custodial arrest of applicant is absolutely necessary during the pendency of trial. It is thus contended by the learned counsel for applicant 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. Per contra, the learned A.G.A., has vehemently opposed the prayer for bail. He submits that since the applicant is a named/charge-sheeted accused therefore, he does not deserve any indulgence by this court. He further submits that the electronic evidence (CCTV footage) also suspects the presence of the applicant at the place of occurrence. The requisite certificate as is required under Section 65-B of the Indian Evidence Act in respect of electronic evidence is also submitted. He, therefore, submits that no sympathy be shown by this Court in favour of applicant. However, he could not dislodge the factual and legal submissions urged by the learned counsel for the applicant with reference to the record at this stage. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made coupled with the fact that the prosecutrix is major, as per the statements of the prosecutrix recorded under Section 161/164 CrPC prima facie she is a willing and consenting party, there is nothing on record to show that the applicant abducted or kidnapped the prosecutrix for dislodging her modesty, the medical evidence does not support the ocular version of the occurrence, in spite of the fact that the charge-sheet has been submitted against applicant and therefore the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized, yet the learned A.G.A. could not point out any such incriminating circumstance from the record necessitating the custodial arrest of the applicant during the pendency of trial, the judgement of Supreme Court in Sumit Subhashchandra Gangwal and another Vs. State of Maharashtra and another, 2023 Livelaw SC 373 (Paragraph 5), the clean antecedents of the applicant, the period of incarceration undergone therefore irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail but, without making any comments on the merit of the case, the applicant has made out a case for bail. Accordingly, the bail application is allowed. Let the applicant Raghvendra @ Rakesh, involved in aforesaid case crime number, be released on bail on his furnishing a personal bond with 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 :-

(i) The applicant shall file an undertaking to the effect that he 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.

(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 sufÏcient cause, the trial court may proceed against him under section 229-A I.P.C.

(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., 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, in accordance with law, under section 174-A I.P.C.

(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 sufÏcient 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.

(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. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his 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. Order Date :- 2.11.2023. Rks. High Court of Judicature at Allahabad