Saurbh v. State of U.P

Court No. - 64 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8504 of 2023 Applicant :- Saurabh Opposite Party :- State of U.P. Counsel for Applicant :- Anil Kumar Ojha,Alok Kumar Singh,Samar Singh Counsel for Opposite Party :- G.A. Hon'ble Siddharth,J.

¶1Heard learned counsel for the applicant and learned A.G.A for the State.

¶2There is allegation against the applicant of committing the offence of rape, criminal conspiracy and offence under Section 67 of I.T. Act.

¶3Counsel for the applicant submits that the victim is major woman. She has made allegation that the applicant raped her on the basis of her objectionable video in his possession.

¶4Keeping in view the aforesaid submissions, this court passed the order dated 18.09.2023, which is as follows :- "Counter affidavit filed on behalf of the police authorities is inadequate. The extracts of the case diary upon which reliance has been placed by the applicant record that the mobile of the applicant is not in working condition and hence the obscene videos could not be recovered. The Additional Director General of Police, Meerut Zone, Meerut to file his personal affidavit disclosing whether in absence of videos circulated from the mobile of the applicant can be recovered with the help of service provider or the platform or any other technical means. Prima facie this reflects a poor state of investigation and supervision over the said investigation on part of the Ghaziabad police authorities. A copy of the order be placed before the Additional Director General of Police, Meerut Zone, Meerut for appropriate enquiry into the deficient investigations and action as per law. List this case on 17.10.2023 in the additional cause list."

¶5In compliance of the aforesaid order an affidavit of compliance has been filed by the Additional Director General of Police, Meerut Zone, Meerut wherein he has stated that mobile phone of the applicant was sent to F.S.L., Niwari but the data could not be retrieved since the phone was not in working condition. The facebook and instagram have informed that the photographs of the victim circulated by the accused have been deleted and they were also not found. He has submitted that as on date there is no such incriminating material collected against the applicant. He is in jail since 05.05.2022 and has no criminal history to his credit.

¶6On the other hand learned A.G.A has opposed the prayer for bail.

¶7Keeping in view the nature of the offence, evidence, complicity of the accused; submissions of the learned counsel for the parties noted above; finding force in the submissions made by the learned counsel for the applicant; keeping view the uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under-trial having fundamental right to speedy trial; larger mandate of the Article 21 of the Constitution of India; considering the dictum of Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021; considering 5-6 times overcrowding in jails over and above their capacity by the under trials 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.

¶8Let the applicant, Saurabh, involved in Case Crime No. 167 of 2022, under Sections-376, 120-B IPC and Section 67 of I.T. Act, Police Station-Sihani Gate, District-Ghaziabad, 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 subject to following conditions. Further, before issuing the release order, the sureties be verified.

(i) The applicant shall not tamper with the evidence or threaten the witnesses.

(ii) 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.

(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.

(iv) 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.

(v) 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.

¶9In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.

¶10Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted. Order Date :- 17.11.2023 Rohit High Court of Judicature at Allahabad