# Ajay Kumar v. State of U.P. Opp. Party

- **Citation:** (2021) 6 ILRA 390
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-16
- **Case number:** Bail No. 5451 of 2018
- **Bench:** Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-kumar-v-state-of-u-p-opp-party-47113
- **Pages:** 7

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 323, 427, 328, 376, 504,
506, 354-D, 392 & 406 , The Code of
criminal procedure, 1973 - Section 161 &
164 , Information Technology Act,2000 -
Section 67 - Publishing of information
which is obscene in electronic form -
Object of bail - neither punitive nor
preventative - to secure the appearance of
the
accused
person
at
his
trial
by
reasonable amount of bail - 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.(Para -
24,26 )

Accused - applicant was a bus driver - forcibly
making sexual contact with complainant -
filming by mobile videography - threatening with
illegal
demand
of
money
-
blackmailing
complainant - physically assault - told her senior
in the institution - statement recorded by the
Investigating Officer - affirms traumatic
situation created by complainant from his acts
and mischief and other witness - accused
applicant in jail - bail application before district
judge - rejected - hence present bail application.

HELD:-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. Accused-applicant is entitled to be
released on bail. 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.(Para - 27,28)

Bail application allowed. (E-6)

List of Cases cited:-

## Text

390 INDIAN LAW REPORTS ALLAHABAD SERIES
applicant
and
the
bail-application
is
rejected at this stage.

21. The trial court is therefore
directed to record the statements of
prosecution witnesses within six months
from the date, certified copy is placed
before it. However, learned trial court
while deciding the case on merit need not
to swayed away with the observations
made in this order.
----------
(2021)06ILR A390
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.06.2021

BEFORE

THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Bail No. 5451 of 2018

Ajay Kumar ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Sudhakar Mishra, Atul Verma, Hari Krishna
Verma, Shitla Prasad Tripathi

Counsel for the Opp. Party:
G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 323, 427, 328, 376, 504,
506, 354-D, 392 & 406 , The Code of
criminal procedure, 1973 - Section 161 &
164 , Information Technology Act,2000 -
Section 67 - Publishing of information
which is obscene in electronic form -
Object of bail - neither punitive nor
preventative - to secure the appearance of
the
accused
person
at
his
trial
by
reasonable amount of bail - 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.(Para -
24,26 )

Accused - applicant was a bus driver - forcibly
making sexual contact with complainant -
filming by mobile videography - threatening with
illegal
demand
of
money
-
blackmailing
complainant - physically assault - told her senior
in the institution - statement recorded by the
Investigating Officer - affirms traumatic
situation created by complainant from his acts
and mischief and other witness - accused
applicant in jail - bail application before district
judge - rejected - hence present bail application.

HELD:-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. Accused-applicant is entitled to be
released on bail. 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.(Para - 27,28)

Bail application allowed. (E-6)

List of Cases cited:-

1. Sanjay Chandra Vs C.B.I., (2012) 1 SCC 40 -
[Spectrum Scam Case]

2. Dataram Singh Vs St. of U.P. & ors. , (2018)
3 SCC 22

(Delivered by Hon'ble Vikas Kunvar
Srivastav, J.)

1. The case is called out through
video conferencing.

2. Learned counsel for the bailapplicant 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.
6 All. Ajay Kumar Vs. State of U.P.
391

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 bailapplication has arisen on rejection of bailapplication 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 bailapplicant 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 accusedapplicant 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 accusedapplicant 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 accusedapplicant, 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
392 INDIAN LAW REPORTS ALLAHABAD SERIES
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 accusedapplicant 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 accusedapplicant 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 bailapplicant 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
accusedapplicant 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
6 All. Ajay Kumar Vs. State of U.P.
393
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
394 INDIAN LAW REPORTS ALLAHABAD SERIES
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
6 All. Ajay Kumar Vs. State of U.P.
395
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 accusedapplicant, 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
396 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
----------
(2021)06ILR A396
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.06.2021

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Crl. Misc. Bail Appl. No. 20591 of 2021

Ravindra Pratap Singh @ Pappu Shahi
 ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Sri Harinarayan Singh, Sri Rakesh Kumar
Srivastava, Sri Mithilesh Kumar Tiwari, Sri Anoop
Tiwari

Counsel for the Opp. Party:
G.A.

A.
Criminal
Law-
Code
of
Criminal
Procedure,1973-Section 439, 151/107/11
- Indian Penal Code, 1860 - Section 306 -
जिलाधिकारी ने कार्यवाही करते हुए सावयिननक भूमि
पर कई वर्य पूराने कृषर् पट्टों को ननरस्त कर दिर्ा
था, जिनसे िृतक के षपता (मिकार्तकताय) व अन्र्
ग्रािवासी प्रभाषवत हुए थे कधथत रूप से सरकारी
कार्यिें अड़चन पहुुँचाने के कारण व सहअमभर्ुक्त पर
हिला करने के कारण कुछग्रा िवामसर्ों के षवरूद्ि
प्रथि सूचना ररपोटय पंिीकृत हुई थी जिस पर
अन्वेर्ण के बाि आरोप पत्र प्रेषर्त भी ककर्े िा चुके
है, जिनिे िृतक व मिकार्तकताय भी िामिल
है।आवेिक ने अपनी सुरक्षा के मलए पुमलस अिीक्षक
के पास गुहार लगाई थी व कधथत रूप से आवेिक व
िृतक की कई वाताय भी हुई थी जिसिें उसने क्षिा
र्ाचना करी थी।इसी क्रि िें कधथत रूप से िृतक व
जिलाधिकारी की भी वाताय हुई थी जिसिें िृतक ने
अपनी परेिाननर्ाुँ साझा करी थी परन्तु उसकी प्राथयना
पर कोई कार्यवाही नहीं हुई थी। आवेिक वतयिान िें
सभासि है तथा सिाि िें उसकी प्रनतष्ठा और प्रभाव
भी है तथा उसका आपराधिक इनतहास भी है, िो वर्य
2004 से अब तक 6 आपराधिक िुकििों का है
न्र्ार्ालर् के सिक्ष सिस्त िानकारी न िेना एक
गंभीर षवर्र् है परन्तु वतयिान प्रकरण िें आवेिक ने
अपने 6 आपराधिक िुकििों की घोर्णा की है, अतः
एक अपराि का षववरण न िेने की भूल िुभायवनापूणय
नहीं िानी िा सकती है। अमभर्ोिन का साक्ष्र्
प्रिुख्तर्ः आत्िहत्र्ा पत्र व श्रव्र् अंि पर आिाररत
है जिसिें आवेिक व सह अमभर्ुक्त पर िृतक को
परेिान करने का कधथत साक्ष्र् है तथा जिसके
कारण िृतक ने आत्िहत्र्ा की थी, परन्तु िैसा पूवय
िें उल्लेखित ककर्ा गर्ा है कक आत्िहत्र्ा के
िुष्प्रेरण के मलए अपरािी को िुष्प्रेरण का कृत ककसी