Ashok Kumar vs State Of Rajasthan

Kuldeep Mathur, J

This second application for bail under Section 439 Cr.P.C. has been filed by the petitioner who has been arrested in connection with F.I.R. No.146/2023 registered at Police Station Mata Ka Than, Jodhpur City East, for the offence under Section 376 (2)(n) of IPC.

Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record.

The first bail application filed on behalf of the petitioner was dismissed by this Court vide order dated 05.10.2023 while granting liberty to the petitioner to move a fresh application for bail after recording of the statements of the prosecutrix, before the competent criminal court.

Learned counsel submitted that the prosecutrix has not appeared before the learned trial court for recording of her statements despite granting of more than ten opportunities. It was submitted that the prosecutrix is intentionally delaying the trial against the present petitioner and therefore, the petitioner deserves to be enlarged on bail.

Learned counsel submitted that as per the prosecution, about three years prior to the date of lodging the FIR, the petitioner had mixed an intoxicant in the drink of the prosecutrix and thereupon, committed sexual assault-rape upon her. As per the prosecution, certain obscene photos and videos of the prosecutrix were captured by the present petitioner and under the threat of making them go viral, the petitioner committed sexual assault-rape upon the prosecutrix on multiple occasions.

Learned counsel further submitted that no plausible explanation has been furnished by the prosecutrix for lodging the FIR after a delay of about three years from the date on which she was allegedly subjected to sexual assault-rape for the first time by the present petitioner.

Learned counsel submitted that, as a matter of fact, the petitioner and the prosecutrix were having a consensual relationship. However, on relations between them turning strained, the petitioner has been roped in a false criminal case Learned counsel further submitted that though there is an allegation against the present petitioner of subjecting the prosecutrix to sexual assault-rape under the threat of making her obscene photgraphs and videos go viral, however, no such obscene photos and videos have been recovered by the Investigating Agency during the course of investigation.

Lastly, learned counsel submitted that since after the rejection of the first bail application, learned trial court has issued various summons to the prosecutrix for securing her presence in the trial however, despite grant of liberty, the prosecutrix has not appeared before the learned trial court for getting her statements recorded; that since the delay in trial is not at all attributable to the present petitioner; that since the petitioner is in judicial custody; the challan has already been filed and the trial of the case will take sufficiently long time; therefore, the benefit of bail may be granted to the accused-petitioner.

Per Contra, learned Public Prosecutor has vehemently opposed the bail application.

Having considered the rival submissions, facts and circumstances of the case, this Court prima facie finds that the prosecutrix, despite issuance of summons and bailable warrants, did not appear before the learned trial court for recording of the statements on 23.11.2023, 20.12.2023, 18.01.2024, 05.02.2024, 08.02.2024, 04.03.2024, 27.03.2024, 09.04.2024, 22.04.2024 and 06.05.2024. In the opinion of this Court, the petitioner is facing trial for serious offences but at the same time, this Court cannot loose sight of the fact that the right of life and liberty and the right of speedy trial available to the accused- petitioner cannot be curtailed, particularly when the delay in trial is not attributable to him. The accused-petitioner cannot be kept in judicial custody for an indefinite period merely on the basis of allegations levelled against him, which are required to be proved by way of leading evidence before the trial court. If the petitioner is found guilty during the course of trial, then the law will take its own course. Thus, without expressing any opinion on merits/demerits of the case, this Court is inclined to enlarge the petitioner on bail.

Consequently, the bail application under Section 439 Cr.P.C. is allowed. It is ordered that the accused-petitioner Ashok Kumar S/o Sh. Surja Ram arrested in connection with F.I.R. No.146/2023 registered at Police Station Mata Ka Than, Dist. Jodhpur City East, shall be released on bail, if not wanted in any other case, provided he furnishes a personal bond of Rs.50,000/-and two sureties of Rs.25,000/- each, to the satisfaction of learned trial court, for his appearance before that court on each & every date of hearing and whenever called upon to do so till completion of the trial.