Himanshu Pandey v. State of U.P

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40963 of 2023 Applicant :- Himanshu Pandey Opposite Party :- State of U.P. Counsel for Applicant :- Amar Nath Singh,Sanjay Kumar Mishra Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.

¶1List revised.

¶2Heard Sri Amar Nath, learned counsel for the applicant, Sri Ajay Singh, learned A.G.A-I 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-Himanshu Pandey, seeking enlargement on bail during trial in connection with Case Crime No.586 of 2022, under Sections 406, 376, 313, 323, 506, 392, 120-B IPC, registered at Police Station Cantt. District Varanasi.

¶4The FIR of the matter was lodged on 14.12.2022 by the victim against the applicant and two other persons and one unknown person alleging therein that she met the applicant in the year 2020 through social media. Then they met each other and the applicant assured her of getting an employment. He took money from her. He made her live on rent in his house. Subsequently on the pretext of his family suspecting something between them, he shifted her to another place of residence. He one day went to her house and stated that she is about to get employment and they would be celebrating it for which he brought food and cold-drink which was given to her to eat and drink. After consuming the cold-drink she slept. In the morning she found herself naked lying on bed with applicant. She woke him up on which he told that he has captured her video. He then threatened her of making video viral and committed sexual assault on her. In the meantime she became pregnant which was got aborted.

¶5Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the victim has disclosed her age to be 28 years in her statement under Section 164 Cr.P.C. It is argued that the victim is a major lady. The relationship between the applicant and the victim was consensual relationship. It is argued that there was some discussion between them with regards to the applicant getting her employed but the same could not materialize and thus present FIR has been lodged. In so far as the incident of rape is concerned, the same is totally vague as no date and time is mentioned in the FIR. It has also been pointed out that the applicant is not having any criminal history as stated in para 28 of the affidavit. The applicant is in jail since 13.3.2023.

¶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 major woman. There was some discussion between the applicant and the victim with regards to getting her employment. The same could not be provided to her. The relationship between the applicant and the victim is consensual.

¶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-Himanshu Pandey, 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 :- 24.11.2023 Gaurav Kuls High Court of Judicature at Allahabad