Court No. - 67
Case :- CRIMINAL APPEAL No. - 1754 of 2021 Appellant :- Abdul Kalam Respondent :- State Of U.P.And Another Counsel for Appellant :- Vipul Kumar Singh Counsel for Respondent :- G.A.,Anurag Upadhyay,Kailash Prakash Pathak
Hon'ble Rahul Chaturvedi,J.
Heard Sri Vipul Kumar Singh, learned counsel for the appellant, learned AGA for the State and Sri Kailash Prakash Pathak, learned counsel for the respondent no.2.
Present appeal has been filed challenging the judgment and order dated 04.03.2021 passed by Special Judge (SC/ST Act), Azamgarh in Bail Application No.567 of 2020 which was rejected.
Pleadings have been exchanged between the parties and matter has arisen for final submissions.
Contention raised by the learned counsel for the informant who is the victim herself that she has lodged an FIR on 04.11.2020 under Section 376-D IPC and Sections 3(1)(w), 3(2)(va) SC/ST Act against the seven named person including the appellant. However, the police after investigation has dropped the name of the seven accused except that of the present appellant.
Learned counsel for the appellant has drawn attention of the Court to the text of the FIR in which the victim herself has disclosed her age as twenty years. Annexure-5 of the affidavit shows that in her High School Examination Certificate, her date of birth is 06.07.2000 and as such on the date of incident she was major. From the text of the FIR it is clear that she has made allegation of gang rape against seven named accused persons but after thrashing during investigation the police has found the appellant is prima facie guilty and submitted charge sheet against him.
From perusal of the medical examination report of the victim, there is no visible external or internal injury over her person. The pathological report too indicates that no spermatozoa was seen.
I have perused the statement of the victim recorded under Section 164 Cr.P.C. which clearly shows that the victim was in the company of the appellant for almost one and half years and established physical relationship with him. It is further contended that the appellant had got married with the victim and marriage certificate (nikahnama) which is annexed as annexure no.9 to the present appeal and the declaration of the marriage signed by both, Abdul Kalam and the victim, dated 23.03.2019 itself. It is contended by the learned counsel for the appellant that both of them had their marital status and the victim is the wife of the appellant. It is submitted that considering this fact she has levelled a wild allegation roping in entire family of the appellant.
Sri Kailash Prakash Pathak, learned counsel for the opposite party no.2/complainant has vehementally opposed the submissions advanced by the learned counsel for the appellant. He has drawn attention of the Court to page 24 of the counter affidavit on the Junior High School Examination-2015 Certificate of Class 8 of the victim Madhubal Gautam in which date of birth is shown as 06.07.2001 and according to him she was minor at that time. Learned counsel for the complainant also submits that the alleged Nikah of the appellant with the victim is not invalid Nikah but on the same date she was got converted and, therefore, the offence is made out against the appellant.
The submissions made by learned counsel for the appellant, prima facie, quite appealing and convincing for the purpose of bail only.
Keeping in view the totality of circumstances and moreover the injured himself has turned hostile and submissions of the learned counsel for the parties and without expressing any opinion on merits of the case, I am of the view that the appellant has made out a fit case for bail.
Let the appellant Abdul Kalam, 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) THE APPELLANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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 APPELLANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPELLANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPELLANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) THE APPELLANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) RECORDING OF STATEMENT UNDER SECTION 313 CR.P.C. IF IN THE OPINION OF THE TRIAL COURT ABSENCE OF THE APPELLANT 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 THE HIM/HER IN ACCORDANCE WITH LAW.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
After hearing the rival submissions of the parties, one fact is fortiori that as per the High School Examination Certificate she is a major and there is no dispute regarding the fact that she is remaining in the company of the appellant for eighteen good months without any resistance, objection or alarm. Even a similar facts and circumstances of the case that the marriage is not an invalid marriage, without making any comment on which the conduct of the victim clearly indicates that she was in physical relationship with the appellant.
With the above observations, the appeal stands allowed and the order impugned dated 04.03.2021 passed by the Special Judge (SC/ST Act), Azamgarh is hereby quashed.
Order Date :- 13.8.2021 Shahroz