Natendra Kumar Yadav Alias Kapil Yadav v. State of U.P., Thru. Prin. Secy. Home, Civil Sectt. Lko

Court No. - 27 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 15301 of 2023 Applicant :- Natendra Kumar Yadav Alias Kapil Yadav Opposite Party :- State Of U.P., Thru. Prin. Secy. Home, Civil Sectt. Lko. Counsel for Applicant :- Manoj Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Brij Raj Singh,J.

¶1Heard learned counsel for the applicant, Sri Avishesh Kumar Singh, learned A.G.A.-I for the State and perused record.

¶2The present bail application has been filed by the applicant with a prayer to enlarge him on bail in Case Crime No.325 of 2023 under Section 376, 506 IPC, PS Risiya, district Bahraich.

¶3Learned counsel for the applicant has submitted that prosecutrix herself lodged FIR making allegation that prior to three months, the applicant on the pretest of marriage, established physical relation and she has also mentioned that prior to 15 years, she was having relation with the applicant. She has stated that later on, the applicant did not fulfil his promise and left her. She has further alleged that the co-accused Mubarak wanted to sell her and He also committed rape upon her.

¶4It has been submitted by the learned counsel for the applicant that the FIR indicates that the date of incident appears three months back but an application under Section 156 (3) CrPC was moved on 3.5.2023 and thereafter, FIR was lodged on 3.8.2023. The medical report is not supporting the prosecution case. The statement under Section 164 CrPC of prosecutrix was recorded and she has admitted that she is a married lady and on the pretext of marriage, for the last 7-8 years, physical relation was established by the applicant and thereafter, she was taken by him to Kashmir. She has levelled allegation of rape against the applicant as well as co-accused one Mubarak. It has been submitted by the learned counsel for the applicant that it is a case of consent and on the face of statement under Section 164 CrPC, it is clear that she was having relation with the applicant for the last 7-8 years and she is a married lady, therefore, pretext of marriage is also not sustainable. He has further submitted that the applicant has no other criminal history and he is in jail since 17.10.2023.

¶5Learned A.G.A. opposed the prayer for bail but could not dispute the aforesaid facts and submitted that statement under Section 164 CrPC indicates that allegation of rape is there, therefore, the bail is liable to be rejected.

¶6Considering over all facts and circumstances of the case, the argument that it is a case of consent, the argument that prosecutrix is a married lady and she has admitted in statement under Section 164 CrPC that for the last 7-8 years, she was having physical relation with the applicant, thus, there is no ingredients of Section 375 IPC made out, it is a fit case for bail.

¶7Let the applicant, Narendra Kumar Yadav alias Kapil Yadav be released on bail in the above case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of Court concerned with the following conditions :-

(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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 counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iii) 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. is issued and the 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 of the Indian Penal Code.

(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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.

¶8It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The Trial Court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything in this order. Order Date :- 22.12.2023 Rajneesh JR-PS) High Court of Judicature at Allahabad, Lucknow Bench