Ankit v. State of U.P

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49207 of 2023 Applicant :- Ankit Opposite Party :- State of U.P. Counsel for Applicant :- Surendra Mohan Mishra,Vishveshwar Mani Tripathi Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.

¶1List revised.

¶2Heard Sri Vishveshwar Mani Tripathi, learned counsel for the applicant and Sri Birendra Pratap Singh, 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-Ankit, seeking enlargement on bail during trial in connection with Case Crime No. 34 of 2023, under Sections 354, 452, 376, 506 I.P.C., Police Station Bhawaniganj, District Siddharth Nagar.

¶4The first information report of the present matter was lodged on 08.05.2023 by Premchand Saini against the applicant alleging therein that his daughter was sleeping in the house at about 1.30 a.m. on 06.05.2023 wherein the applicant barged in and enraged her modesty and on hearing shouts his daughter-in-law Sangeeta and son Amit Kumar came there and apprehended the applicant. His daughter is aged about 20 years. The first informant along with his daughter has come to the police station.

¶5Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that although in the first information report there is a reference that the applicant was apprehended by the daughter-in-law and son of the first informant but as per the prosecution case he was then released and he went away. It is argued that there is no allegation of rape committed by the applicant in the first information report. The same subsequently finds place for the first time in the present matter in the report of pathologist wherein the victim was found to be pregnant. It is argued that even the victim in her statements recorded under Section 161 Cr.P.C. and under Section 164 Cr.P.C. does not state of the applicant committing rape upon her. It is argued that there is no credible evidence against the applicant. The first information report was lodged under sections 452, 354 I.P.C. but after the medical examination report and affidavit given by the victim to the Investigating Officer section 376 I.P.C. was added. It is argued that the applicant is not involved in the present case. The applicant has no criminal history as stated in para 21 of the affidavit and is in jail since 02.09.2023.

¶6Per contra, learned counsel for the State opposed the prayer for bail.

¶7After having heard learned counsel for the parties and perusing the record, it is evident that the allegation of rape in the present matter has surfaced after the medical examination report finding the victim to be pregnant and her affidavit given to the Investigating Officer. There is no allegation of rape in the first information report, statements of the victim recorded under Section 161 Cr.P.C. and under Section 164 Cr.P.C. She is stated to be a major in the first information report itself.

¶8Looking 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.

¶9Let the applicant-Ankit, 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.

¶10The 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.

¶11The bail application is allowed. Order Date :- 20.11.2023 AS Rathore (Samit Gopal,J.) High Court of Judicature at Allahabad