Vineet Kumar v. State of U.P

Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46638 of 2023 Applicant :- Vineet Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Sandeep Tripathi Counsel for Opposite Party :- G.A.,Rahul Kumar Shukla Hon'ble Rajeev Misra,J.

¶1Heard Mr. Sandeep Tripathi, the learned counsel for applicant, the learned A.G.A. for State and Mr. Kapil Dev Dubey, Advocate, holding brief of Mr. Rahul Kumar Shukla, the learned counsel representing first informant.

¶2Perused the record.

¶3This application for bail has been filed by applicant-Vineet Kumar, seeking his enlargement on bail in Case Crime No. 301 of 2023, under Sections 328, 376, 452 IPC, Police Station-Civil Lines, District-Muzaffarnagar during the pendency of trial.

¶4Record shows that in respect of an incident, which is alleged to have occurred on 29.08.2023, a delayed FIR dated 31.08.2023 was lodged by first informant-Shahzadi i.e. the prosecutrix and was registered asCase Crime No. 301 of 2023, under Sections 323, 328, 376, 506 IPC, Police Station-Civil Lines, District-Muzaffarnagar. In the aforesaid FIR, applicant-Vineet Kumar has been nominated as solitary named accused.

¶5The gravamen of the allegations made in the FIR is to the effect that on 29.08.2023 at around 09:00 PM, applicant is alleged to have given a phone call to the prosecutrix to come and meet him at Government Hospital, Muzaffarnagar. On this request, the prosecutrix is alleged to have reached the Government Hospital, Muzaffarnagar where she was given a cold drink containing some stupefying substance. The FIR further records that the applicant thereafter carried the prosecutrix to her home and as there was no one in the home of the prosecutrix, applicant dislodged her modesty repeatedly.

¶6Learned counsel for applicant contends that though applicant is a named as well as charge sheeted accused inasmuch as, the charge sheet has been submitted against applicant on 24.09.2023 whereby applicant has been charge sheeted under Sections328, 376, 452 IPC yet applicant is liable to be enlarged on bail. The prosecutrix is major. She is a willing and consenting party. She herself came to the applicant. Referring to the medical examination report of the prosecutrix, he submits that the medical opinion does not support the ocular version of the occurrence. Furthermore, as per the narration contained in the FIR, the prosecution story is highly improbable. As such, the applicant is liable to be enlarged on bail.

¶7Even otherwise, applicant is a man of clean antecedents inasmuch as, he has no criminal history to his credit except the present one. Applicant is in jail since 14.09.2023. As such, he has undergone more than 2 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. On the above premise, he submits that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

¶8Per contra, the learned A.G.A. and the learned counsel representing first informant have vehemently opposed the prayer for bail. They submit that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

¶9Having heard, the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon perusal of record, evidence, nature and gravity of offence, accusations made, complicity of accused and coupled with the fact that the prosecutrix is major, prima-facie she is a willing and consenting party inasmuch as, she herself went to meet the applicant at Government Hospital, Muzaffarnagar at around 09:00 P.M., the occurrence is alleged to have occurred in the house of the prosecutrix herself which is doubtful, the medical examination does not support the ocular version of the occurrence, the prosecution story as unfolded in the FIR is highly improbable, the FIR itself was lodged with delay of 3 days, which delay has not been explained either in the FIR nor in the statement of the first informant/prosecutrix under Section 161 Cr.P.C., since the delay in lodging the FIR has not been explained, the prosecution of the applicant itself prima-facie cannot be maintained, in view of the law laid down by the Apex Court in P. Rajagopal And Ors. Vs. The State of Tamil Nadu, AIR 2019 SC 2866 (paragraph 8), the clean antecedents of applicant, the period of incarceration undergone, the police report in terms of Section 173(2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet in spite of above, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, the judgment of the Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), therefore, irrespective of the objections raised by the learned A.G.A. and the learned counsel representing first informant in opposition to the present application for bail, but without making any comments on the merits of the case, applicant has made out a case for bail.

¶10Accordingly, the bail application is allowed.

¶11Let the applicant-Vineet Kumar, be released on bail in the aforesaid case crime number on his 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 SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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.

(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

(iv) 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 THE HIM/HER IN ACCORDANCE WITH LAW.

(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

¶12However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above. Order Date :- 30.11.2023 Vinay High Court of Judicature at Allahabad