Dimpal @ Hemant Sharma v. State of U.P

Court No. -65 Case :-CRIMINAL MISC. BAIL APPLICATION No. -48665 of 2023 Applicant :-Dimpal @ Hemant Sharma Opposite Party :-State of U.P. Counsel for Applicant :-Pawan Kumar Bhardwaj,Abhishek Gupta,Pramod Bhardwaj Counsel for Opposite Party :-G.A. Hon'ble Rajeev Misra,J. Heard Mr. Abhishek Gupta, the learned counsel for applicant and the learned A.G.A. for State. Perused the record. Supplementary affidavit filed by learned counsel for applicant in Court today is taken on record. This application for bail has been filed by applicant-Dimpal seeking his enlargement on bail in Case Crime No. 255 of 2023 under section 376, 506 IPC, Police Station. Rabupura, District Gautam Budh Nagar, during the pendency of trial. Learned counsel for applicant submits that though the applicant is a named accused yet he is liable to be enlarged on bail. Prosecutrix is major. She is a willing and consenting party. Referring to the medical examination report of the prosecutrix, he contends that medical evidence does not support the ocular version of the occurrence inasmuch as no signs were found on the body of prosecutrix so as to denote commission of deliberate or forceful sexual assault. Even otherwise, applicant is in jail since 7.10.2023. As such, he has undergone 1 and 1/2 months of incarceration. Applicant has criminal history of 12 cases. However, the same has been sufficiently explained. Referring to the three judges judgement of Supreme Court in Brijmani Devi Vs. Pappu Kumar and Another Vs. (2022) 4 SCC 497, he submits that an accused cannot be denied bail simply on the ground of criminal history. However up to this stage, no such circumstance has emerged on the record necessitating the custodial arrest of applicant during the pendency of investigation/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 prima facie prosecutrix is a willing and consenting party, prosecutrix is major, medical evidence does not support the ocular version of the occurrence, the period of incarceration undergone, the explained criminal history of the applicant 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, applicant has made out a case for bail. Accordingly, the bail application is Allowed. Let the applicant Dimpal @ Hemant Sharma 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 :- 1.12.2023 Arshad High Court of Judicature at Allahabad