Vishal Nishad @ Vishal Sahani v. State of U.P

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 47738 of 2023 Applicant :- Vishal Nishad @ Vishal Sahani Opposite Party :- State of U.P. Counsel for Applicant :- Om Prakash Singh,Akash Deep Srivastava,Ram Chandra Solanki Counsel for Opposite Party :- G.A.,Anurag Tripathi Hon'ble Samit Gopal,J.

¶1List revised.

¶2Heard Sri Akash Deep Srivastava, learned counsel for the applicant, Sri Bare Lal Bind, learned AGA for the State and perused the material on record.

¶3Sri Anurag Tripathi, learned counsel for the first informant is not present even when the matter has been taken up in the revised list.

¶4Learned State counsel submits that he has received instructions in the matter for which time was granted to him on 08.11.2023.

¶5This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Vishal Nishad @ Vishal Sahani, seeking enlargement on bail during trial in connection with Case Crime No. 329 of 2023, under Sections 376, 323, 506 I.P.C. registered at P.S. Gorakhnath, District Gorakhpur.

¶6The F.I.R. of the matter was lodged on 24.5.2023 by the victim herself against the applicant alleging therein that she was previously married to one Dwarika Prasad. She later on came to know that he is already married. She met the applicant around 1-1/2 years back who gave her some intoxicating substances and committed rape upon her. He clicked some photographs and made video of it. He on threat used to commit rape upon her. On 07.8.2022 he called her in a hotel at about 10.00 a.m. where he committed rape upon her till 4.00 p.m.On 20.4.2023 he came to her house and finding her alone, wanted to establish physical relationship with her. She resented it on which the applicant assaulted her due to which she suffered injury on the eye for which she was treated.

¶7Learned counsel for the applicant argued that the victim is a major married woman. It is argued that the victim was pressurizing for marriage and the applicant did not adhere to it, he has been falsely implicated in the present case, para-18 of the affidavit has been placed before the Court to buttress the said arguments. It is argued no such photograph or video has been recovered by the Investigating Officer during investigation. It is argued that the applicant has no other criminal antecedents as stated in para-24 of the affidavit and is in jail since 22.6.2023 (para-25).

¶8Per contra, learned State counsel opposed the prayer for bail.

¶9After having heard learned counsels for the parties and perusing the record, it is evident that victim is a major married woman. No such photograph or video has been recovered by the Investigating Officer during investigation.

¶10Looking 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.

¶11Let the applicant-Vishal Nishad @ Vishal Sahani, 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.

¶12The 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.

¶13The bail application is allowed. (Samit Gopal,J.) Order Date :- 15.12.2023/Naresh High Court of Judicature at Allahabad