Pankaj Rao v. State of U.P

Court No. -65 Case :-CRIMINAL MISC. BAIL APPLICATION No. -48577 of 2023 Applicant :-Pankaj Rao Opposite Party :-State of U.P. Counsel for Applicant :-Gyan Chandra Yadav Counsel for Opposite Party :-G.A. Hon'ble Rajeev Misra,J. Heard Mr. K.P. Yadav, Advocate, holding brief of Mr. Gyan Chandra Yadav, the learned counsel for applicant and the learned A.G.A. for State. Perused the record. This application for bail has been filed by applicant Pankaj Rao seeking his enlargement on bail in Case Crime No. 121 of 2023, under sections 420, 406, 376, 504, 506 IPC, Police Station-Sadar Bazar, District Saharanpur during the pendency of trial. Record shows that in respect of an incident which is alleged to have occurred on 12.9.2022, a prompt F.I.R. dated 13.3.2023 was lodged by first informant/Sangeeta Gupta and was registered as Case Crime No. 121 of 2023, under sections 420, 406, 376, 504, 506 IPC, Police Station-Sadar Bazar, District Saharanpur. In the aforesaid F.I.R., applicant Pankaj Rao has been nominated as solitary named accused. Learned counsel for applicant submits that though the applicant is a named as well as charge sheeted accused, inasmuch as the charge sheet has already been submitted against applicant on 15.5.2023, yet the applicant is liable to be enlarged on bail. With reference to the F.I.R. he submits that the F.I.R is highly belated. However, neither in the F.I.R. nor in the statement of prosecutrix recorded under section 161 Cr.P.C. there is any explanation regarding the delay in lodging the F.I.R. As the delay in lodging the F.I.R. has not been explained, the prosecution of applicant itself cannot be maintained. Prosecutrix is major, as such she is aged about 38 years. Proseuctrix has herself joined the applicant and accompanied him to various places on his motorcycle. As such, the prosecutrix is a willing and consenting party. As such applicant is liable to be enlarged on bail. Applicant has criminal history of three cases, but the same has been duly explained. Referring to the judgement in Brijmani Devi Vs. Pappu Kumar 2022 (4) SCC 497, he submits that an accused cannot be denied bail simply on the ground of criminal history. Applicant is in jail since 27.2.2023. As such, he has undergone more than nine months of incarceration. The police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by prosecution against applicants stands crystalized, however, no such circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. It is thus urged 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. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant, with reference to the record at this stage. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant, accusation made coupled with the fact that there is delay in lodging of F.I.R. However, the delay in lodging F.I.R. has not been explained either in the F.IR. itself nor in the statement of prosecutrix recorded under section 161 Cr.P.C. Consequently, the prosecution of applicant itself cannot be maintained. The prosecutrix is major as she is aged about 38 years, the prosecutrix is a willing and consenting party, as the prosecutrix has herself joined the applicant and accompanied him to various places on his motorcycle. The explained criminal history of applicant and the period of incarceration, there is no material evidence to support the ocular version as the prosecutris has himself referred for her internal medical examination. The police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by the prosecution against applicants stands crystalized, yet, inspite 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, judgement of Supreme Court in Subhaschandra Gangwal and another Vs. The state of maharashtra and Another, 2023 Live law (SC) 373, therefore irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail, but without making any comment on the merits of the case, the applicant has made out a case for bail. Accordingly the bail application is allowed. Let the applicant Pankaj Rao 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 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. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her 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 :- 6.12.2023 Arshad High Court of Judicature at Allahabad