Ashok @ Kaptan v. State of U.P

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49656 of 2023 Applicant :- Ashok @ Kaptan Opposite Party :- State of U.P. Counsel for Applicant :- Deepak Kumar Dubey,Yadavendra Dwivedi Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.

¶1List revised.

¶2Heard Sri N.L. Tripathi holding brief of Sri Yadavendra Dwivedi, learned counsel for the applicant, Sri Ram Prakash Shukla, 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-Ashok @ Kaptan, seeking enlargement on bail during trial in connection with Case Crime No.234 of 2023, under Sections 452, 354, 376 IPC, registered at Police Station Rasoolabad, District Kanpur Dehat.

¶4The FIR of the matter was lodged on 23.6.2023 under Sections 452, 354 IPC by the victim herself against the applicant alleging therein that her husband works in Rajasthan. On 18.6.2023 at about 12 a.m. the applicant entered inside her house and enraged her modesty.

¶5Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that subsequently during investigation in the statements of the victim recorded under Sections 161 Cr.P.C. and 164 Cr.P.C., she states of the applicant committing rape upon her by threatening her minor child by a country-made pistol, the same is misconceived. It is argued that the factum of rape is stated for the first time in the statement of the victim recorded during investigation which was conspicuously missing in the FIR. It is argued that charge sheet has been submitted in the matter. It has also been pointed out that the applicant is not having any criminal history as stated in para 20 of the affidavit. The applicant is in jail since 18.7.2023.

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

¶7After hearing the counsel for the parties and perusing the record, it is evident that the victim is a married woman. The averment regarding sexual assault on the victim is missing in the FIR. which is confined only to the fact enraging her modesty the same finds place in the statements of the victim recorded under Sections 161 Cr.P.C. and 164 Cr.P.C.

¶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-Ashok @ Kaptan, 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. (Samit Gopal, J.) Order Date :- 22.11.2023 Gaurav Kuls High Court of Judicature at Allahabad