# Sunil Dua (In Jail Since 18.04.2019) v. State of U.P. & Anr

- **Citation:** (2019) 4 ILRA 858
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-07
- **Case number:** Crl. Misc. Bail Application No. 30621 of 2019
- **Bench:** Rahul Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunil-dua-in-jail-since-18-04-2019-v-state-of-u-p-anr-44963
- **Pages:** 6

## Headnote

A. Criminal Law - Indian Penal Code, 1860-
Sections 376(2)(f)(i)(n), 506 & Protection
of Children From Sexual Offences (POCSO)
Act- Section 5/6 -application-rejectionvictim was student, she was sexually
assaulted
by
her
tutor-on
attaining
majority victim lodged FIR- accused pleads
for
sympathetic
treatment
as
he
is
suffering
from
Metastatic
Cancer
of
Prostate-the court found no reasonable
justification as to why victim falsely
implicate the accused after lapse of six
years-hence, the application for bail is
rejected with the direction that trial would
gear up. (Para 5,18, 21 & 22)

The relationship between the applicant and
the informant/victim at the relevant point of
time was a pious one as a tutor and taught.
After an elapse of six years she has narrated
her nightmare and thereafter she was
constantly being harassed and maltreated by
the applicant on telephone or by following her,
while going to school or market. The conduct
is an unbecoming for a tutor. (Para 12)

Crl. Misc. Bail application dismissed. (E-6)

## Text

858 INDIAN LAW REPORTS ALLAHABAD SERIES
in the commission of crime. However, the
bail
was
granted
to
the
accusedrespondent no.2 on the ground of parity
that other co-accused were enlarged on
bail. The Apex Court, however, cancelled
the bail of the accused-respondent no.2 on
the ground that criminal history of seven
cases was not taken into account by the
High Court. In Neeru Yadav's case, the
Apex Court has held that while dealing
with the application for grant of bail, it is
the duty of the Court to take into
consideration certain factors i.e. the
nature of accusation and the severity of
punishment in cases of conviction and the
nature of supporting evidence and the
criminal antecedent of the accused.
Similarly in the case of State o Orissa
Versus Mahimananda Mishra, 2018
LawSuit (SC) 902, the Hon'ble Apex
Court has held: it is by now well settled
that at the time of considering an
application for bail, the Court must take
into account certain factors such as the
existence of a prima facie case against the
accused including the criminal history.
The existence of a prima facie case
showing the involvement of accused is
absolutely necessary for the Court to
decide the bail application. Hon'ble Apex
Court though
has held
in
various
judgements that the criminal antecedent
of the accused carries a huge importance
as to whether bail should be allowed to
hardened criminal or not but, in my
considered opinion, merely on the basis of
the criminal history of accused, bail
cannot be denied to him. The prosecution
must prima facie place some evidence
before Court regarding his involvement in
a case and thus the bail cannot be refused
to accused merely on the basis of criminal
history or his past antecedents. Learned
counsel for the informant except laying
strong emphasis on the criminal history of
the applicant-accused, could not establish
a prima facie case except confessional
statement of co-accused which, too, has
no legal sanctity in the eye of law. in the
light of judgement of Full Bench apex
court (supra).

9. Considering the facts and
circumstances of the case as also the
submissions advanced by learned counsel
for the parties, without expressing any
opinion on merits of the case, I am of the
view that the applicant is entitled to be
released on bail.

10. Let applicant-Ahtesham Ahmad
Zaidi be released on bail in the aforesaid
case crime number on his furnishing a
personal bond of Rs.5,00,000/- and two
reliable sureties of the like amount to the
satisfaction of the court concerned subject
to following conditions that:-

1.The applicant shall not tamper
with the prosecution evidence;

2.The
applicant
shall
not
pressurize the prosecution witnesses;

3.The applicant shall appear on
the date fixed by the trial court.

11. In case of default of any of the
conditions enumerated above, the courts
below shall be at liberty to cancel bail of
the applicant.
----------

(2019)12 ILR A858

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.11.2019

BEFORE
THE HON'BLE RAHUL CHATURVEDI, J.

Crl. Misc. Bail Application No. 30621 of 2019
4 All. Sunil Dua Vs. State of U.P. & Anr.
859
Sunil Dua ...Applicant
 (In Jail Since 18.04.2019)
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Arvind Verma, Ms. Swati Agrawal Srivastava

Counsel for the Opposite Parties:
G.A., Sri Chetan Chaterjee

A. Criminal Law - Indian Penal Code, 1860-
Sections 376(2)(f)(i)(n), 506 & Protection
of Children From Sexual Offences (POCSO)
Act- Section 5/6 -application-rejectionvictim was student, she was sexually
assaulted
by
her
tutor-on
attaining
majority victim lodged FIR- accused pleads
for
sympathetic
treatment
as
he
is
suffering
from
Metastatic
Cancer
of
Prostate-the court found no reasonable
justification as to why victim falsely
implicate the accused after lapse of six
years-hence, the application for bail is
rejected with the direction that trial would
gear up. (Para 5,18, 21 & 22)

The relationship between the applicant and
the informant/victim at the relevant point of
time was a pious one as a tutor and taught.
After an elapse of six years she has narrated
her nightmare and thereafter she was
constantly being harassed and maltreated by
the applicant on telephone or by following her,
while going to school or market. The conduct
is an unbecoming for a tutor. (Para 12)

Crl. Misc. Bail application dismissed. (E-6)

(Delivered by Hon'ble Rahul Chaturvedi,J.)

1. Heard Ms. Swati Agrawal
Srivastava, learned counsel for the
applicant, Sri Chetan Chaterjee, learned
counsel for the complainant, Sri S.K.Pal,
learned G.A. and perused the record.

2. Pleadings between the parties
have been exchanged and the matter has
ripen for final argument.

3. Pursuant to the earlier order of
this Court, today, the Court is in receipt of
the sealed cover letter from Senior Jail
Superintendent,
Central
Jail,
Naini,
Prayagraj dated 07.11.2019 annexing the
report given by given by Dr. Paul
Thaliath, Additional Director Medical &
Chief
Consultant,
Regional
Cancer
Centre, Kamla Nehru Memorial Hospital,
Allahabad,
regarding
alleged
"Malignancy" of the accused-applicant
and perused the entire record.

4. The long and short of the FIR, as
canvassed by the learned counsel for the
applicant, is that on 14.04.2019 the victim
herself lodged the instant FIR against sole
named
accused
person
Sunil
Dua,
narrating her tale of woes suffered in her
childhood. The chick FIR unveils the
dates of incident from 01.01.2012 to
01.01.2013, however, this FIR was got
registered on 14.04.2019 i.e., after elapse
of six years, when the victim attained the
age of majority. The FIR was got
registered under Sections 376(2)(f)(i)(n),
506 IPC and Section 5/6 Protection of
Children From Sexual Offences (POCSO
Act, P.S. Civil Lines, District Allahabad.

5. The contents of the FIR is that
the named accused person was her private
tutor and was sacked from his job in
February 2013 and since then he was
constantly
chasing
the
victim
girl,
extending
her
threats
on
telephone
blackmailing the victim/informant to
mentally and emotionally exploiting her
by the ultimate peril of committing
suicide. In sum and substance of the FIR
that during her childhood when she was
student of Class VII, she was sexually
assaulted by the accused applicant Sunil
Dua, who was a private tutor and on
account
of
this
constant
860 INDIAN LAW REPORTS ALLAHABAD SERIES
physical/mental/psycholigical assault, the
victim suffered deep depression and
mental
trauma
for
which
she
is
undergoing
the
treatment
from
psychiatrist since then. Of late when she
attained the age of majority she lodged
the instant FIR narrating the sad saga of
her nightmare suffered by her during
childhood. On the very next date of
lodging of the aforesaid FIR, her 161
Cr.P.C. statement was recorded referring
to the period when she was student of
class VII and the ways and means by
which she was sexually maltreated by the
aforesaid accused applicant. Rest of the
averments are almost the same, identical
and reiteration of FIR.

6. The 164 Cr.P.C. statement, which
was recorded on 18.04.2019, is a long
statement given by the prosecutrix herself,
which is unfortunate saga of a young girl,
who was forced to face all sorts of rough
sexual treatment to the extent that her
private organs were touched by lascivious
hands of a lecherous debouch, who is
herein the accused. In 164 Cr.P.C.
statement she has given every minutest
details of the vulgar treatments time and
again, received by her, when she was a
minor student of Class VII.

7. Learned counsel for the applicant
tried to raise castle of her argument by
submitting that the victim declined to get
herself medically examined by the doctor
so as to substantiate the allegation of
sexual assault upon her. It is further
contended by the learned counsel for the
applicant that in the absence of any
corroborative evidence it is highly risky to
blindly rely upon the 164 Cr.P.C.
statement of the alleged victim girl. It is
further submitted that the allegation of
deep mental depression that she is reeling
under deep depression is absolutely
canard as she has secured a Grade-A in
her ICSC Examination of Class-X in the
year 2017 and thus a girl, who was
suffering with mental trauma, cannot
secure this grade in her High School
examination. It is further submitted by the
learned counsel for the applicant that
there
are
inconsistencies
in
the
date/duration of sexual harassment which
are not compatible to each other and cast
serious doubt about the prosecution story.
More over there is no allegation of rape
under Section 164 Cr.P.C. statement. It is
further contended by the counsel that
since the applicant was a hard task master
and laborious teacher in the profession,
therefore, after the period of six years she
has come up with false story falsely
implicating the applicant. Furthermore, it
is contended that since the applicant hails
from a affluent family and just to grab his
property, a false and imaginary story was
tailored by the girl to robe him in this
filthy and dirty case. Lastly, it is
submitted that the applicant is suffering
from Metastatic Cancer of Prostate, which
is at advance stage and therefore he
should be given sympathetic treatment by
this Court.

8. Per contra, Sri Chetan Chaterjee,
learned counsel for the complainant
vehementally refuted each and every
submission made by the learned counsel
for the applicant. Learned counsel for the
complainant submitted that the FIR is not
an encyclopedia whereby every minute
detail could be given in it. The girl, who
was student of Class VII, facing turmoil
for a complete six years on being sexually
abused by none other than her own tutor,
turned petrified so much as that she could
not open her mouth before her parents
during the entire period. In fact, the
4 All. Sunil Dua Vs. State of U.P. & Anr.
861
applicant initially terrorized the victim
girl to such an extent that she could not
dare to open her mouth before her parents
and misadventuring the dark moments, he
used to quench the animal instinct with
the victim girl. The matter of fact is that
the
applicant
is
suffering
from
psychological disorder, which is termed
as PAEDOPHILA (a person who is
sexually infatuated towards adoloscent),
which is defined as psychiatric disorder
wherein an adult or older adolescent is
sexually
attracted/infatuated
towards
prepubescent children. The statement
recorded under section 164 Cr.P.C. of the
victim girl, reveals that the victim girl in
no uncertain terms has vomitted out the
gray experience faced by her during the
rough and tough time of her childhood.
The applicant used to insist her pupil (the
victim) to remain in seclusion in the garb
of imparting education, he while petting,
used to cut luscivious remarks on her
private organs. All these misdeeds and
misadventures of the applicant imprinted
adverse impact on psychae of the victim.

9. So far as the financial and family
background of the victim is concerned,
the same is quite descent. Her mother is
an
Associate
Professor
in
Sam
Higginbottom University of Agriculture,
Technology and Science (SHUATS),
Naini Allahabad whereas her father is a
Teacher in Basent School at Varanasi.
Besides this, the parent also run a
prestigious restaurant at Civil Lines,
Allahabad and they are financially sound
well off.

10. Learned counsel for the
complainant has earnestly challenged the
medical prescription annexed with the
affidavit,
establishing
the
precarious
health condition of the applicant and
vehemently opposed the bail application
moved by the applicant.

11. This Court has heard learned
counsel for the parties at great length,
perused the annexures with the respective
affidavits and perused the document in
support of the averments made in their
respective affidavits.

12. Admittedly, the relationship
between
the
applicant
and
the
informant/victim at the relevant point of
time was a pious one as a tutor and taught.
After an elapse of six years she has
narrated her nightmare and thereafter she
was
constantly
being
harassed
and
maltreated by the applicant on telephone
or by following her, while going to school
or market. The conduct is an unbecoming
for a tutor.

13. Ms. Swati Agrawal Srivastava,
learned
counsel
for
the
applicant
submitted that since the applicant was a
hard task master and this is the sole
motive for his false implication in the
instant case.

14. The aforesaid is an absurd
argument as in the society we all have
passed through the same phases of life
and still cherish the childhood period,
therefore, deed and misdeeds of our
childhood sometimes go nostalgic and
sometimes haunts. Here in the instant
case, the misdeeds of the applicant seems
to be her haunting memory.

15. So far as grabbing of property is
concerned, this argument too, do not carry
much weight. Both of the families
belongs to descent financial background
and this submission of false implication
on account of extracting money also
862 INDIAN LAW REPORTS ALLAHABAD SERIES
carries no weight. In paragraphs 14, 15
and 16 of the affidavit, it has been averred
that the victim used to ask money (Rs.
1000/-2000/-) from the applicant every
day as her pocket money and thereafter
she demanded Rs. 10,000/- from the
applicant, on being refused to the
unreasonable demand by the applicant,
she threatened him to falsely implicate in
a criminal case. The entire scene painted
by the accused seems to be fanciful as it
has been suggested that a minor girl,
studying in class VII, would demand
money from her tutor instead her parent.

16. After hearing the submissions at
great length, this Court reaches at loss to
gather any reasonable justification as to
why the victim would falsely implicate
the accused-applicant in the instant case,
that too, after an elapse of six years.

17. No doubt there are certain
discrepancies with regards to date and time of
the incident but particularly the allegation of
ravishment to young girl by a person who is
having a fiduciary relationship, which brings
the accused in a vulturous shady and dark
charactered man.

18. So far as the applicant's personal
physical condition is concerned, it has
been argued by learned counsel for the
applicant that he is suffering from
Metastatic Cancer of Prostate and the
report of Dr. B. Paul also corroborate the
same. It is submitted in the said report
that he is under treatment from AIMS and
at present his physical condition is stable
at present. As his PSA report which was
conducted on 02.10.2019 shows that they
are in the normal range.

19. The Court has got every
sympathy for the applicant but but facts
remains, that he is an accused of molestation,
misbehavior and breach of trust of fiduciary
relationship qua with her taught.

20. In our shastra, a teacher is bound
to have good moral character without
having any ambition of materialistic
pleasure and is restrained to make false
speeches to his pupil. One of the shlokas,
mentioned in the shastra in this regard, is
enumerated as below:-

सर्वाभिलवभिणः
सर्ािोभिनः सपरिग्रहवः।
अब्रह्मचव
रिणो
भिथ्योपदेशव गुिर्ो न तु ॥

िवर्वथा
:

अचभलाषा रखनेवाले
, सब
भोग करनेवाले
,
सांग्रह
करनेवाले
, ब्रह्मियघ का
पालन न करनेवाले
,
और
चमथ्या उपदेश करनेवाले
,
गुरु नहीां है ।

21. Therefore, under the prevailing
circumstances, I find no good reason to
exercise my discretion in favour of the
applicant, the bail application of the
applicant is hereby rejected.

22. However, keeping in view the
health condition of the applicant, it is
directed that the learned trial judge would
gear up the trial and would make all
necessary endeavour to conclude the same
by 15.05.2020 positively provided the
prosecution and defence would render
sufficient cooperation and not to seek any
unwarranted adjournments in the matter
in early conclusion of the trial.

23. It is further directed that Senior
Jail Superintendent, Naini would have a
4 All. Ram Kishun Fauji Vs. State of U.P.
863
close vigil over the health condition of the
applicant and would send the applicant to
the AIIMS, New Delhi for his periodical
medical check up as and when required at
the expenses born by the Government
during the period of trial only.
----------
(2019)12 ILR A863

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.11.2019

BEFORE
THE HON'BLE KARUNA NAND BAJPAYEE, J.

Crl. Misc. First Anticipatory Bail Application No.
51463 of 2019

Ram Kishun Fauji ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Birendra Singh, Sri Anoop Kumar

Counsel for the Opposite Party:
A.G.A., Sri Vipin Kumar

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 438 & Indian
Penal Code, 1860 - Sections 376, 452, 504
& 506 - application-rejection-applicant
committed rape - five criminal cases
registered against the applicant-having
criminal history the anticipatory bail is
rejected. (Para 5)

this is a serious matter in which the allegations
are to the effect that the applicant who is
having a revolver & rifle license had under the
coercion and show of force committed rape
upon her and kept the victim at the pain of
death. The father of victim has already died
and her mother is a widow helpless lady. The
applicant is an ex-army man and has already
been a Pradhan and wields enormous criminal
clout having a criminal history also, and by
using his muscle power he continued to molest
and outrage the modesty of the victim for a long
period of time and the first informant and her
mother could not dare to come out and could not
muster up courage to raise their voice under the
fear of being eliminated.in matters like this, brute
display of muscle power is capable to subjugate
the helpless girls and the belated reporting of the
offence and its late disclosure by itself remains
self-explained and on that ground the gravity of
the accusation does not get mitigated. (Para 4)

Crl.
Misc.
first
Anticipatory
Bail
application dismissed. (E-6)

(Delivered by Hon'ble Karuna Nand Bajpayee,J.)

1. Shri Vipin Kumar, Advocate has
filed his Vakalatnama in the Court today
on behalf of complainant which is taken
on record.

This anticipatory bail u/s 438 Cr.P.C.
has been moved seeking the bail of
applicant namely Ram Kishun Fauji,
involved in Case Crime No.93 of 2019,
under sections 376, 452, 504, 506 I.P.C.,
Police
Station-
Chandpur,
District-
Fatehpur.

2. Heard learned counsel for the
applicant,
learned
counsel
for
the
complainant and learned A.G.A. for the
State and perused the record.

3. Submission of the counsel is that
actually the first informant had some
illicit relationship with a different person
and as the applicant had raised objection
regarding the same he has been falsely
implicated in this case to continue their
illicit relationship. The delay in lodging
the F.I.R. has also been pointed out by the
counsel.

4. Heard learned A.G.A. as well as
counsel appearing for complainant who
has opposed this application and have