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2009 DIGILAW 2414 (ALL)

Ladale @ Faijan v. State of U. P.

2009-06-29

VIJAY KUMAR VERMA

body2009
JUDGMENT: Vijay Kumar Verma, J. Prayer for bail in this case has been made on behalf of applicant Ladele @ Faijan s/o Shaukat Alli r/o Bansh Deoria, Ward No. 19, P.S. Kotwali, Deoria, in case crime no. 306 of 2008 (Crl. Case No. 2302 of 2008), under sections 376, 372, 342, 506, 511 I.P.C., P.S. Kotwali, Deoria, District Deoria. 2. The allegations made in the FIR lodged on 30.03.2008 by the complainant Sweta Maddheshiya at P.S. Kotwali, Deoria, in brief, are that Smt. Seema Srivastava, Reeta, Sheela, Meera Singh and Ladale (applicant herein) were operating brothel house by way of sex racket in Deoria city. The complainant being annoyed with her family members in the month of October 2008 was going to her relation at Deoria and when after reaching Deoria bus stand, she was searching rickshaw, all of a sudden two women came there and carried her to their quarter in mohallah Bhatwalia, Deoria. After three or four days the complainant came to know that she has fallen victim to sex racket. It is further alleged in the FIR that the accused persons were sexually exploiting the complainant and she was being forced to have sexual intercourse with her other persons. About the applicant Ladale, it is averred in the FIR that he was also sexually exploiting the complainant and he himself used to commit rape with her forcibly and he was also bringing other persons, who used to commit rape with the complainant. It is also alleged that during the course of her stay, the accused persons tried to sell the complainant and accused Ladale had talk with some other persons for this purpose. Ultimately, one day the complainant escaped from the clutches of the accused persons and came to the house of Smt. Sneh Lata Rai, who carried her to P.S. Kotwali Deoria, where FIR was lodged by her. It was also alleged that the accused Ladale used to threaten the complainant to kill her. 3. I have heard argument of Sri Alok Kumar Srivastava, Advocate appearing for the applicant and AGA for the State. 4. The main submission made by the learned counsel for the applicant was that no such incident as alleged in the FIR had occurred and after concocting a false story, the applicant has been falsely roped in this case. 3. I have heard argument of Sri Alok Kumar Srivastava, Advocate appearing for the applicant and AGA for the State. 4. The main submission made by the learned counsel for the applicant was that no such incident as alleged in the FIR had occurred and after concocting a false story, the applicant has been falsely roped in this case. It was also alleged in this context that after causing marpeet with the applicant, he was arrested prior to lodging the FIR on 30.03.2008. For this submission, my attention was drawn towards the medical report of the applicant (annexure-2), whereby he was medically examined on 31.03.2008 at 3.00 p.m. and his injury has been shown about one day old. The contention of the learned counsel was that in view of this medical report, the injury on the person of applicant appears to have been caused on 30.03.2008 about 3.00 p.m., whereas the FIR was lodged on 30.03.2008 at 11.30 p.m., which makes the entire case doubtful. 5. Next submission made by learned counsel for the applicant was that medical report of the prosecutrix is not supporting the allegations of committing rape with her, as no injury on her private part was found at the time of her medical examination. It was also submitted by learned counsel that due to some dispute and enmity with constable Yousuf Khan, the applicant was falsely roped in this case. 6. It was further submitted by learned counsel that except the prosecutrix, other witnesses have not named the applicant in their statements recorded under section 161 Cr.P.C. and hence on this ground also, the applicant deserves bail, because merely on the basis of the statement of prosecutirx, the applicant cannot be detained in jail for indefinite period. 7. It was also submitted by learned counsel that the applicant is in jail since 31.03.2008 and hence on the basis of long detention period in jail, the applicant is entitled to be released on bail, because due to delay in trial, fundamental right of speedy trial envisaged under Article 21 of the Constitution is being infringed. 8. 7. It was also submitted by learned counsel that the applicant is in jail since 31.03.2008 and hence on the basis of long detention period in jail, the applicant is entitled to be released on bail, because due to delay in trial, fundamental right of speedy trial envisaged under Article 21 of the Constitution is being infringed. 8. Regarding the statement of the prosecutrix recorded under section 164 Cr.P.C., it was submitted by learned counsel for the applicant that from the certified copy of that statement, it is not clear as to on which date and by which magistrate the said statement was recorded and hence it is not safe to place any reliance on the statement of the prosecutirx recorded under section 164 Cr.P.C. 9. It was also submitted by learned counsel for the applicant that other co-accused persons have been granted bail by this Court and hence on the basis of the principles of parity the applicant also should be admitted to bail. 10. The AGA opposed the bail application contending that the applicant Ladale was active member of sex racket, which was being operated in Deoria city by the accused persons. It was also submitted by learned AGA that in her statement recorded under section 164 Cr.P.C., the prosecutrix has fully supported the FIR version and since serious allegations of committing rape with her by the applicant Ladale and also offering her for sexual intercourse to other persons has been levelled against the applicant, hence in this heinous ante-social crime, bail should not be granted to the applicant. 11. On the point of granting bail on the principles of parity, it was submitted by learned AGA that being women Smt. Sheela Srivastava and Smt. Seema Srivastava have been granted bail by another Bench of this Court, but benefit of those bail orders cannot be extended to the applicant, who committed rape with the prosecutrix many times and sexually exploited her in the brothel house, which was being operated as sex racket. 12. I have carefully gone through the entire material on record. Statement of the prosecutrix under section 164 Cr.P.C. was recorded by CJM Deoria. Copy of that statement has been filed as annexure-1 to the supplementary counter affidavit dated 28.05.2009. Serious allegation of committing rape by the applicant Ladale has been levelled in that statement by the prosecutrix. 12. I have carefully gone through the entire material on record. Statement of the prosecutrix under section 164 Cr.P.C. was recorded by CJM Deoria. Copy of that statement has been filed as annexure-1 to the supplementary counter affidavit dated 28.05.2009. Serious allegation of committing rape by the applicant Ladale has been levelled in that statement by the prosecutrix. It is also stated in that statement that the accused Ladale himself used to commit rape with the prosecutrix and he was also offering her to other persons for having sexual intercourse. It is also stated in the aforesaid statement that Ladale used to bring other persons and daily seven or eight persons used to commit rape with prosecutrix. It is also stated by the prosecutrix in her statement that the accused persons were making plan to sell her, but some how she succeeded to escape from the clutches of the accused persons. Therefore, having regard to over all the facts and circumstances and keeping in view the statement of the prosecutrix recorded under section 164 Cr.P.C., in this heinous ante-social crime, the applicant does not deserve bail and granting bail in such cases would be a fraud on the society, which is ultimately adversely affected by such crimes. 13. In my considered opinion, on the basis of the long incarceration in jail also, the applicant can not be admitted to bail in this heinous crime. In this context, reference may be made to the case of Pramod Kumar Saxena vs. Union of India and others 2008 (63) ACC 115, in which the Hon'ble Apex Court has held that mere long period of incarceration in jail would not be per-se illegal. If the accused has committed offence, he has to remain behind bars. Such detention in jail even as an under trial prisoner would not be violative of Article 21 of the Constitution. 14. For the reasons mentioned herein-above, the bail application of the applicant Ladale @ Faijan is hereby rejected. 15. The trial court is directed to conclude the trial of the accused-persons within a period of six months by making sincere efforts and avoiding unnecessary adjournments. If the accused persons who have been bailed out remain absent or their counsel does not co-operate, then their case may be separated and sincere efforts be made to conclude the trial of the applicant within aforesaid period. 16. If the accused persons who have been bailed out remain absent or their counsel does not co-operate, then their case may be separated and sincere efforts be made to conclude the trial of the applicant within aforesaid period. 16. SSP Deoria is also directed to depute special messenger to procure the attendance of witnesses after obtaining their summons from the trial court concerned. 17. The office is directed to send a copy of this order to the court concerned and SSP Deoria within a week for necessary action.