Manish Mathur, J
1. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State, learned counsel for informant and perused the record.
2. This first bail application has been filed with regard to Case Crime No.0467 of 2022 under Sections 376, 313, 504, 506 I.P.C., P.S. Meja, District Prayagraj.
3. As per contents of first information report, there was interaction between first informant and applicant 11 years prior to the date of incident and an affair had ensued between the two in the year 2018 with physical relations being established in the year 2018 upon promise of marriage by applicant to first informant. It is sated that due to physical relations established over a period of years, the first informant became pregnant four times but forcible abortion was resorted to at the instance of applicant. It is also stated that subsequently when applicant's business flourished, he lost interest in marrying the first informant and subsequently denied marriage itself. It has also been stated that when the last abortion took place in the year 2022, pressure was exerted upon first informant by applicant to abort the same due to which sonography of first informant was conducted. It is stated that when first informant put pressure upon applicant to marry her, he refused saying that he was already married.
4. Learned counsel for applicant submits that applicant has been falsely implicated in the charges levelled against him and in fact the parties were in a consensual relationship as would be evident from the long tenure of relationship between the two indicated in the F.I.R. itself. As such, it is submitted that there is a clear distinction in a promise of marriage being falsely extended at the time of inception and subsequent breach of marriage in order to attract the provisions of Section 90 read with Section 375 and 376 I.P.C., ingredients of which are missing in the present case. Learned counsel has also drawn attention to the statement of Doctor and report of sonography to submit that the same do not corroborate the allegations of abortion. Learned counsel has placed reliance on judgments rendered by Hon'ble the Supreme Court in Ansaar Mohammad v. State of Rajasthan & another, reported in 2022 Live Law (SC) 599, Maheshwar Tigga v. State of Jharkhand, reported in (2020) 10 SCC 108 and Sonu @ Subhash Kumar v. State of U.P., reported in 2021(115) ACC 732.
5. Learned Additional Government Advocate appearing on behalf of State as well as learned counsel for informant have opposed the bail application with submission that the contents of F.I.R. have been clearly corroborated by first informant in subsequent statements recorded under Sections 161 and 164 Cr.P.C. and therefore clearly makes out a case of physical relation being established on the false pretext of marriage thereby attracting the conditions of Section 376 I.P.C.
6. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :-
"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."
"27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."
7. Considering the submissions advanced by learned counsel for the parties and upon perusal of the material on record, prima facie, and subject to further evidence being led in trial, it appears from a perusal of F.I.R. itself that first informant and applicant were known to each other and were on friendly terms since 11 years prior to the incident and physical relations between the two are said to have been established four years prior to lodging of F.I.R. Allegedly, first informant also became pregnant a number of times. However, the report of sonography and the statement of doctor at this stage do not appear to corroborate the allegations of abortion levelled against applicant. Difference between compromise to marry being false at the time of its being extended and subsequent breach of promise are distinct and separate as indicated in the judgments rendered by Hon'ble the Supreme Court indicated herein above particularly when the complainant has willingly established relationship with applicant and the ingredients of Sections 90, 375 and 376 I.P.C. may not be attracted if subsequently the relationship is not working out as per judgment of Hon'ble the Supreme Court in Ansaar Mohammad(Supra). Applicant is in jail since 11.09.2022 with only charge sheet having been filed. As such, without expressing any opinion on the merits of case, this Court finds, the applicant is entitled to be released on bail in this case.
8. Accordingly bail application is allowed.
9. Let applicant Shahid Iqbal, involved in the aforesaid case crime be released on bail on his 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) 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.
