# Hariom Sharma v. State of

- **Citation:** (2022) 6 ILRA 1019
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-31
- **Case number:** Criminal Misc. 2nd Bail Application No. 12379 of 2022
- **Bench:** Sanjay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hariom-sharma-v-state-of-48621
- **Pages:** 4

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 344 - It is high
time for the trial court to resort to Section 344
Cr.P.C in appropriate cases. In the present case
since the prosecutrix before the trial Court has
turned hostile and completely denied the
prosecution version, therefore she is not entitled
to the benefit of any compensation paid by the
Government, which has been collected from the
taxpayers of the country.

Application allowed. (E-12)

## Text

6 All. Hariom Sharma Vs. State of U.P.
1019
mention that the Apex Court in the case of
Union of India vs. Shiv Shankar Keshari
(2007) 7 SCC 798 as well as in Union of
India Vs. Rattan Malik (2009) 2 SCC 624 has
held that court while considering the bail
application with reference to section-37 of the
Act is not called upon the record a finding of
not guilty. It is for the limited purpose
essentially confined to the question of
releasing the accused on bail that the Court is
called upon to see if there are reasonable
grounds for believing that the accused is not
guilty and records its satisfaction about
existence of such grounds. It is further material
to state that the applicant has no criminal
history which is not disputed by the State.

13. Considering the submissions of both
the parties and keeping in mind the twin
conditions of Section 37 of N.D.P.S. Act and
perusing the evidence on the record, it is very
much established that sampling was done
contrary to the Standing Order / Instruction
No.1 of 1989 dated 13.6.1989, which are
mandatory in nature, as such chances of
applicant conviction is weak on the basis of
sampling of contraband done in the present
matter as well as on the basis of the ratio of the
judgment in the case of Union of India vs.
Shiv Shankar Keshri (supra) larger mandate
of Article 21 of the constitution of India
without expressing any opinion on the merit of
the case, I am of the view after applying
section 37 of the N.D.P.S. act that the applicant
is entitled to be released on bail.

14. Let the applicant- Wali Hassan
involved in aforesaid case be released on bail
on their furnishing a personal bonds and two
heavy sureties each in the like amount to the
satisfaction of the 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.
----------
(2022)06ILR A1019
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2022

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Criminal Misc. 2nd Bail Application No. 12379 of
2022

Hariom Sharma ...Applicant
Versus
State of U.P. ...Opposite Party
1020 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Applicant:
Sri Shashi Kant Rai

Counsel for the Opposite Party:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 344 - It is high
time for the trial court to resort to Section 344
Cr.P.C in appropriate cases. In the present case
since the prosecutrix before the trial Court has
turned hostile and completely denied the
prosecution version, therefore she is not entitled
to the benefit of any compensation paid by the
Government, which has been collected from the
taxpayers of the country.

Application allowed. (E-12)
(Delivered by Hon'ble Sanjay Kumar
Singh, J.)

1- Heard Mr. Shashi Kant Rai, learned
counsel
for
the
applicant,
learned
Additional
Government
Advocate
representing the State and perused the
record.

2- By means of this application under
Section 439 of Cr.P.C., applicant, who is
involved in Case Crime No. 661 of 2020,
under
Section
376/34
IPC,
P.S.
Anoopshahr, District Bulandshahr seeks
enlargement on bail during the pendency of
trial.

3- This is the second bail application.
The first bail application of the applicant
was rejected by this Court vide order dated
13.08.2021 passed in Criminal Misc. Bail
Application No. 23073 of 2021 on the
ground that victim in her statement under
Section 164 Cr.P.C. has made allegation of
rape against all the three accused person
and in the vagina of the victim a circular
wooden piece of 12 cm long and 2.5 cm in
circumference was found.

4- The main substratum of argument
of learned counsel for the applicant is that
the evidence of the victim has been
recorded
before
the
trial
court
on
30.07.2021 as PW-1 in which she has not
supported the prosecution case and has
been declared hostile. She stated that she
had made the allegation of rape in her
statement under Section 164 Cr.P.C. at the
behest of her husband and police. It is also
pointed out that other co-accused namely,
Solanki Sharma and Rajesh Sharma have
been granted bail by the co-ordinate Bench
of this Court vide order dated 25.02.2022
and 26.04.2022 passed in Criminal Misc.
Bail Application No. 52622 of 2021 and
Criminal Misc. Bail Application No. 36862
of 2021, respectively. The case of the
applicant stands on better footing than that
of the aforesaid co-accused. The applicant
has no criminal history to his credit and he
is languishing in jail since 29.12.2020.

5- Per contra, learned A.G.A. for the
State opposed the prayer for bail of the
applicant by contending that possibility of
winning over of the victim cannot be ruled
out, but does not dispute the aforesaid
factum of the case as argued on behalf of
the applicant.

6- Considering the facts and
circumstances of the case as well as
keeping in view the nature of the offence,
evidence, complicity of the accused as
well as considering the fact that the victim
in her evidence before the trial court has
not supported the prosecution case and
that the other co-accused namely Solanki
Sharma and Rajesh Sharma have been
granted bail by the co-ordinate Bench of
this Court, this Court is of the opinion that
the applicant has made out a case for bail.
Hence, the bail application is hereby
allowed.
6 All. Hariom Sharma Vs. State of U.P.
1021

7- Let the applicant-Hariom 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) That the applicant
shall
cooperate in the expeditious disposal of the
trial and shall regularly attend the court
unless inevitable.

(ii) That the applicant shall not
directly or indirectly make any inducement,
threat or promise to any person acquainted
with the facts of the case so as to dissuade
him from disclosing such facts to the court
or to any police officer or tamper with the
evidence.

(iii) That after his release, the
applicant shall not involve in any criminal
activity.

(iv) The identity, status and
residential proof of sureties will be verified
by court concerned.

8- 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.

9- It is clarified that anything said in
this order is 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.

10- Before parting with this case, I
would like to observe that nowadays the
practice of stating falsehood are being
increased and the same is on higher side.
On account of allegation of rape against the
applicant, the image of the applicant has
been tarnished in the society. He was
arrested and suffered the ignominy of being
involved in most hatred offence of rape. He
lost reverence in the society whereas every
one has right to live with dignity in the
society. On acquittal of the accused on the
ground that victim turned hostile, the
stigma against him may be washed away to
the certain extent but that is not enough. It
is
well
settled
that
presumption
of
innocence will have to be balanced with the
right of victim and accused as well as
above all societal interest for enforcing the
rule of law. Neither accused nor victim or
any witnesses should be permitted to
subvert a criminal trial by stating falsehood
and resort to contrivances, so as to make it
theatre of the absurd. Dispensation of
justice in a criminal trial is a serious issue
and cannot be allowed to become a
mockery
by
simply
allowing
prime
prosecution witnesses /victims to turn
hostile
as
a
ground
of
acquittal.
Complainants should also be accountable
and should take responsibility on their
shoulder.

11- Considering the societal interest,
it is high time for the trial court to resort to
Section 344 Cr.P.C in appropriate cases. In
the present case since the prosecutrix
before the trial Court has turned hostile and
completely denied the prosecution version,
therefore she is not entitled to the benefit of
any compensation paid by the Government,
which has been collected from the
taxpayers of the country.

12- In view of the above trial Court
shall consider the issuance of necessary
direction against the alleged prosecutrix/
victim
to
refund
the
amount
of
1022 INDIAN LAW REPORTS ALLAHABAD SERIES
compensation, if any received by her, in the
appropriate head of the treasury account
and shall also ensure the compliance of
provisions of section 344 Cr.P.C at the
appropriate stage, if it deems fit and proper
under the facts and circumstances of the
case.

13- Office is directed to transmit a
copy of this order to the court concerned
within a week for compliance.
----------
(2022)06ILR A1022
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.05.2022

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Misc. Bail Application No. 4691 of 2022

Zeba Rizwan ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Anil Kumar Tripathi, Vivek Pandey

Counsel for the Opposite Party:
G.A., Arvind Kumar Mishra, Mohammad
Airaj Siddiqui, Sharvan Kumar Nayak,
Sushil Kumar Singh, Versha Rani Srivastava

A. Criminal Law - U.P. Gangsters and
Anti-Social
Activities
Prevention
Act,1986 - Section 19(4) - The accused
person, who has been prosecuted for
serious offences including murder, attempt
to murder and criminal conspiracy, should
not be granted bail under the U.P. Gangster
and Anti-Social Activities (Prevention) Act,
1986

B. Criminal Law - Code of Criminal
Procedure, 1973 - Sections 2(wa),
24(8), 372 & 301 - The matter in
question is under Section 3(1) of U.P.
Gangster
and
Anti-Social
Activities
(Prevention) Act, 1986, and not under the
IPC or any other Special Act and the
complainant of the said case is the S.H.O.
of the police station. So the counsel for the
victim of the predicate offence i.e. FIR No.
002 of 2022 does not come within the
category of "victim" pertaining to the
present case. If the said victims of the
predicate offence are permitted to appear
and oppose the bail applications in the
matters of Gangsters Act, it shall open a
Pandora's box and prove hurdle in proper
disposal of the case.

Application allowed. (E-12)

List of Cases cited:-

1. Jagjeet Singh & ors. Vs Ashish Mishra @
Monu & anr. 2022(1) BLJ 169

2. Sudha Singh Vs St. of U.P. Criminal Appeal
No. 448/2021

3. Sabir Ali Khan Vs St. of U.P Criminal Misc. Bail
Application No. 18588/2021
(Delivered by Hon'ble Krishan Pahal, J.)

1. Counter Affidavit filed by learned
counsel, Sri Sushil Kumar Singh, is taken
on record.

2. Heard Sri Vivek Pandey, learned
counsel for the applicant, Sri Sushil Kumar
Singh, learned counsel for the victim (in
the case of murder), and learned A.G.A. for
the State and perused the material placed
on record.

3. By means of the present bail
application, the applicant seeks bail in Case
Crime No. 54 of 2022, under Section 3(1)
of U.P. Gangster and Anti-Social Activities
(Prevention) Act, 1986, Police Station-
Tulsipur, District- Balrampur, during the
pendency of trial.

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