HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Hon’ble Vikas Kunvar Srivastav, J.
BAIL No. – 5451 of 2018
State Of U.P
Counsel for Applicant :- Sudhakar Mishra,Atul Verma,Hari Krishna Verma,Shitla Prasad Tripathi; Counsel for Opposite Party :- G.A.
1. The case is called out through video conferencing.
2. Learned counsel for the bail-applicant Sri Atul Verma, Advocate and learned A.G.A. for the State Sri Prem Praksh, Advocate are connected through video conferencing in virtual hearing of the case.
3. The present bail-application is moved on behalf of accused-applicant-Ajay Kumar, who is involved in Case Crime No.0117/2018, under Sections 323, 427, 328, 376, 504, 506, 354-D, 392, 406 of I.P.C. and Section 67 of Information Technology Act, registered at Police Station Mahila Thana Hazaratganj, District Lucknow.
4. The occasion of present bail-application has arisen on rejection of bail-application of accused-applicant by learned Additional District and Sessions Judge, F.T.C.-Ist, Lucknow vide order dated 30.05.2018.
5. Learned counsel for the bail-applicant Sri Atul Verma, Advocate stated about the prosecution story as emerged from the first information report. In brief, the report is lodged against the present accused-applicant-Ajay Kumar Pal and his wife. Ajay Kumar Pal, the present accused-applicant was a bus driver attached with S.G.P.G.I., Lucknow. According to the victim of the case, the complainant met first of all from the bus driver, Ajai Kumar Pal at Charbagh, Lucknow because during city commute from Charbagh to her house, while boarded in the bus, her phone was missed therein, being driver of the bus, the present accused-applicant helped her in searching the phone. Subsequently, familiar relations were developed between them and accused-applicant used to visit the house of complainant to meet her family members also.
6. It is further complained of that on the pretext of some economical problems, the accused-applicant borrowed Rs.20,000/- from the mother of the complainant under promise to pay back the same within two months, thereafter, approximately Rs.10,000/- also severally from the family members he borrowed, time to time. The accused-applicant used to be on telephonic conversation from the complainant and her mother also and time to time used to visit them in their house. After some time, the present accused-applicant started ringing the telephone of complainant irrespective of time and enumerably also.
7. It is further complained of that when the borrowed money was not paid back either totally or partially by the accused-applicant to the mother of the complainant, she insisted to get the money back from him. The complainant when asked the applicant to pay the money due upon him, he refused to do so, pretending him to be in economical inability at that time and also threatened her not to tell the refusal from paying back to her parents. Subsequent thereto, on further asking to return the money, the accused-applicant once beaten her, snatched her phone and broken laptop but this could not be conversed to the parents by the victim because she was feared of the enmity as she was lonely child of her parents and did not want to create any mental tension for them. However, the complainant began to avoid picking the phone calls of the accused-applicant, whereupon he started to visit her in office, threateningly calling her outside the office.
8. Once, during such mischievous visit, the accused-applicant administered her intoxicating substance and when she came under the effect of intoxication, he sexually abused her in bus. During that incident, the accused-applicant filmed the entire incident of sexual abuse through videography. On the basis of videographed incident of sexual abuse, he began to threaten her of social defame and to prove her an unchaste lady and to spoil her life.
9. All these things were told by the complainant to her senior in office, subsequent thereto, the accused-applicant was removed from bus driving. Even then, the accused-applicant continued to make phone calls to the family members namely the sister-in-law, the mother and the nephew to hurl threats on telephone. He also threatened the father of the complainant. Once he reached at the office of the complainant in drunken position and from there, he chased her upto the house of the complainant and began to abuse her in filthy language. He threatened to kill the parents of the complainant.
10. The accused-applicant forcibly took away with him a two wheeler of the complainant alongwith him. The complainant and her family members, under the fear of their life, fame and reputation, they lodged an first information report but did not name the accused-applicant therein.
11. The accused-applicant further continued with his mischiefs and then began to talk with the friends of the complainant telling her an unchaste lady and even succeeded in breaking a marriage proposal from abroad. He further threatened that he will not leave any stone unturned in defaming her in the society. The family members and well wishers supported the complainant but the accused-applicant began to blackmail her asking money for his illegal gratification, if the money is not delivered to him, he will defame and will ensure the killing her family. Ultimately, the complainant lodged the first information report on 20.08.2016 against the accused-applicant.
12. Learned counsel for the bail-applicant further submitted that virtually all the allegations are false, the money was actually borrowed by the family members of the complainant themselves and when they could not return the money by reason of their economical distress they wanted to get rid from the demand of pay back by the accused-applicant, therefore, by all the hook or crook, even by labeling the false blame of sexual exploitation, concocted a story in lodging F.I.R. otherwise as and when required, the accused-applicant and his family members extended their help physically, financially and socially to the family of complainant. This is evident from a bank transaction through bank demand draft of Rs.33,657/- dated 13.06.2016 needed on account of fees to the Amity University for the study of complainant.
13. Learned counsel further argued that so far as the allegations as to the sexual exploitation is concerned, is also incorrect, the complainant herself was in habit of sexual intercourse and she developed physical relations with the accused-applicant on her own from the last one year before the date of registration of F.I.R. Everything between them was consensus, even the voluntary exchange of money, physical and social help, intimacy of every kind within the aforesaid period of one year by reason of the mutual live in relations.
14. Learned counsel raised an objection as to the non-availability of medical evidences of rape, as no spermatozoa were found in the sample of the vaginal swab.
15. Learned counsel lastly submitted that the accused applicant is languishing in jail since 19.03.2018 for no fault of him, he has no criminal antecedents and he is resident of Sultanpur and during the course of employment, he was resident of Mohanlal Ganj, Lucknow but since his employment is terminated by reason of present offence, he is bound to live in Sultanpur, however, he is not in a position of fleeing away from the process of the Court.
16. Learned counsel further submitted that the accused-applicant is ready and willing to face the trial and for this purpose, he is ready and willing to furnish proper bail bonds and surety bonds.
17. So far as filming of the sexual exploitation in the bus by mobile videography is concerned, learned counsel for the bail-applicant submitted that there is no electronic evidence in this regard, therefore, the allegations as to the blackmailing on the basis of videographed article is baseless.
18. On the other hand, learned A.G.A. Sri Prem Prakash, Advocate submitted that the argument of learned counsel for the bail-applicant is of no avail with regard to the allegations of the rape because the statements of the victim under Section 161 and 164 Cr.P.C. are intact with regard to her traumatic sexual exploitation. This is also to be kept into mind that the complainant was the only child of her parents and was suffering from the fear of unsafeness and lack of any support to counter the mischief of the bail-applicant.
19. Learned A.G.A. in continuation of his argument stated hereinabove submitted that the fact of forcibly making sexual contact with the complainant, filming the same by mobile videography, threatening on the basis of filmed videographed of sexual exploitation coupled with illegal demand of money, blackmailing the complainant as well as to physically assault her was told by her to her senior in the institution, Sri Abhisek Mishra, whose statement is recorded by the Investigating Officer and made annexure to the counter affidavit as CA-3. He affirms the traumatic situation created by complainant from his acts and mischief and the other witness, the brother of the victim has also stated the same.
20. As such, learned A.G.A. submits that the entire allegations made in the first information report prima facie found support of two witnesses on the basis whereof, the offence under Sections 323, 427, 328, 376, 504, 506, 354-D, 392, 406 of I.P.C. and Section 67 of Information Technology Act are arraigned against the present accused-applicant. So far as the videograph of sexual exploitation of complainant is concerned, the same was done by the accused-applicant by a device like phone or any other thing which might be in the possession and power of the accused-applicant and unless he discloses the same, at the stage of bail, it cannot be produced before the Court or any evidences with that regard also.
21. However, learned A.G.A. submitted that entire case is investigated and culminated into submission of charge sheet before the Court. All the evidences are collected and produced before the Court. He has not denied that no evidence with regard to the Section 67 of the I.T. Act is produced before the Court till date.
22. Learned A.G.A. submitted that the offence with which the accused-applicant is arraigned, is a social offence particularly against a woman and in a patriarchal society, the man always thinks himself to be a master of woman. Accused exploited finding the victim, lonely child of the parents working for livelihood and therefore found her as a poor victim for her sexual gratification. It cannot be presumed at this stage that applicant is innocent as he himself admitted the visiting terms as well as telephonic conversation terms with the complainant and her family members also. It is also admitted that he used to be in financial transaction and exchange of money with the family members and the victim herself time to time. The fact that who was beneficiary of the money of the transaction either physically or through bank is a question of evidence which is to be decided by the trial court during the course of examination of witnesses. However, the version of accused-applicant that he helped monitorily time to time to the victim’s family and the victim herself is an advanced move by him against the version in F.I.R. that he borrowed actually Rs.20,000/- from the mother of the victim and subsequently Rs.10,000/- time to time and severally from the other family members of the victim.
23. On the ground of all these facts and circumstances referred in the arguments made by learned A.G.A., it is submitted by him that the bail-application of the present accused-applicant need be rejected.
24. On hearing the rival contentions of the contesting parties and perusal of record, it is also considered that not only the chargesheet is submitted in the Court but the prosecution evidence has also substantially recorded by the trial court. The purpose of the bail is neither to punish the accused-applicant by keeping him in jail or to teach him a lesson but the object of the bail is to ensure the presence of the accused-applicant during the trial. Hon’ble the Supreme Court in para 21, 22 and 23 of the judgment given in the case of Sanjay Chandra Vs. Central Bureau of Investigation reported in [(2012 1 SCC 40)-(Spectrum Scam Case)], has laid down certain objects of bail under Section 437 439 of the Cr.P.C. which are as follows:
“21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.
23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.”
25. In the context of above observation of Hon’ble the Supreme Court another considerable fact is that there is no possibility of adversely influencing the witnesses, as the most prominent witness, the victim herself as PW-1 is examined and the trial is still running. PW-2 i.e. the supporting witness of the victim is also examined and rest of the formal witnesses are being examined. This is also relevant in the matter that the accused-applicant is in jail since 19.03.2018 and his family members are not living in Mohan Lal Ganj, recently they are residing in Sultanpur, therefore even a bleak possibility of adversely influencing the witnesses is not existing in the case.
26. Keeping into mind the valuable right of personal liberty and the fundamental principle not to disbelieve a person to be innocent unless held guilty and if he is not arraigned with the charge of an offence for which the law has put on him a reverse burden of proving his innocence as, held in the judgment of Hon’ble the Supreme Court in Dataram Singh Vs. State of U.P. and Others reported in [(2018) 3 SCC 22], I find force in the submission of learned counsel for the bail-applicant to enlarge him on bail.
27. However, learned trial court is directed to conclude the evidence of the witnesses of both the side and to decide the case expeditiously in accordance with law reasonably within six months from the date, the certified copy of this order is received to it.
28. Considering the rival submissions of learned counsel for the parties, without expressing any opinion on the merits of the case and considering the nature of accusation, complicity of the accused-applicant, gravity of the offence and the severity of punishment in case of conviction and the period for which he is in jail, it would be better to leave on the wisdom of the trial court all these things on merit, therefore, I find force in the argument of learned counsel for the accused-applicant. The accused-applicant is entitled to be released on bail in this case.
29. Let applicant- Ajay Kumar be released on bail in Case Crime No.0117/2018, under Sections 323, 427, 328, 376, 504, 506, 354-D, 392, 406 of I.P.C. and Section 67 of Information Technology Act, registered at Police Station Mahila Thana Hazaratganj, District Lucknow on his furnishing a personal bond worth Rs. 1,00,000/- (one lac) and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-
(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.
30. Office is directed to send the trial Court, the direction given in the order with regard to expeditious disposal forthwith.