Pintu Nishad v. State of U.P

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46435 of 2023 Applicant :- Pintu Nishad Opposite Party :- State of U.P. Counsel for Applicant :- Kamlesh Kumar Tiwari Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.

¶1List revised.

¶2Heard Sri Kamlesh Kumar Tiwari, learned counsel for the applicant, Sri Bade Lal Bind, learned counsel for the State and perused the material on record.

¶3This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Pintu Nishad, seeking enlargement on bail during trial in connection with Case Crime No. 767 of 2023, under Sections 376(2)(n), 506 I.P.C., registered at Police Station Gulriha, District Gorakhpur.

¶4Learned counsel for the State states that instructions has been received for which time was granted to him vide order dated

02.11.2023.

¶5The FIR of the matter was lodged on 29.08.2023 by the victim herself against the applicant alleging therein that she used to talk to the applicant and he by threatening her used to commit rape on her and used to threat her of murdering her brother. She did not tell to anyone. On 27.08.2023 he called her on phone and threatened her of murdering her family after which she gathered courage and lodged the present FIR.

¶6Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the victim is a major lady. She has disclosed her age as 25 years in her statement recorded under Section 161 Cr.P.C. It is further argued that in the FIR there is no disclosure regarding date and time of the alleged incident of rape. It is argued that the same is totally vague and even if any such incident has occurred, the date and time is not mentioned anywhere. It is argued that the victim has in her statement recorded under Section 161 Cr.P.C. changed the version as stated in the FIR and stated that the applicant made false promise to marry and on the same he used to commit rape on her. He further argued that the applicant has no criminal history as stated in para 13 of the affidavit and is in jail since 29.08.2023.

¶7Per contra, learned counsel for the State opposed the prayer for bail.

¶8After having heard learned counsels for the parties and perusing the records, it is evident that the date and time of the incident of rape is not in the FIR. The FIR gives the reason of extending threats on the victim and committing rape on her which has been changed by the victim during investigation by stating that on false promise to marry there was physical relationship established.

¶9Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.

¶10Let the applicant Pintu Nishad, be released on bail in the aforesaid case crime number on 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:-

i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

ii) The 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.

(iii) 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.

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

(v) 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 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 and the trial court may proceed against him under Section 229-A IPC.

(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

¶11The 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 and send the applicant to prison.

¶12The bail application is allowed. Order Date :- 20.11.2023 M. ARIF (Samit Gopal, J.) High Court of Judicature at Allahabad