Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31160 of 2021 Applicant :- Anis Mohammad Opposite Party :- State of U.P. and Another Counsel for Applicant :- Santosh Kumar Dubey Counsel for Opposite Party :- G.A.,Rakesh Kumar Srivastava
Hon'ble Samit Gopal,J.
Heard Sri Krishnakant Dubey, Advocate holding brief of Sri Santosh Kumar Dubey, learned counsel for the applicant, Sri Rakesh Kumar Srivastava, learned counsel for the first informant and Ms. Babita Kumari, learned counsel for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Anis Mohammad, seeking enlargement on bail during trial in connection with Case Crime No. 173 of 2021, under Sections 376, 323 I.P.C., registered at Police Station Khoda, District Ghaziabad.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the present case, is a case of consent. The prosecutrix was married 20 years back as stated by her in her statement recorded under Section 161 Cr.P.C. She has stated that she is a married woman, she lived with her husband for 14 years and from the wedlock, five children were born, six years prior she took divorce from him and then met the applicant after which, the applicant made a false promise to marry her on which, physical relationship between them continued. Thereafter, she told the applicant to marry her but he did not marry her and assaulted her. It is further argued that the prosecutrix in her statement recorded under Section 164 Cr.P.C., has stated her age to be about 35 years. It is argued that the present first information report has been lodged just in order to falsely implicate, harass and blackmail the applicant. The physical relationship between the applicant and the prosecutrix was a consensual relationship. The prosecutrix is a married, adult lady having five children, who was married around 20 years back. It has also been pointed out that the applicant is not having any criminal history as stated in para 13 of the affidavit and he is in jail since 05.04.2021.
Per contra, learned counsel for the first informant and learned counsel for the State have opposed the prayer for bail and argued that the applicant is named in the first information report and had promised to marry the prosecutrix and on the said pretext, established physical relationship with her since the last five years and as such, he is involved.
After having heard the learned counsel for the parties and perusing the record, it is apparent that the prosecutrix is aged about 35 years as stated by her in her statement recorded under Section 164 Cr.P.C. She is a divorced woman having five children. There was some understanding between the applicant and the prosecutrix for marriage but due to some dispute, marriage could not be solemnized.
Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
Let the applicant- Anis Mohammad, 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 applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant shall file an undertaking to the effect that he 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.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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., may be issued and if 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 I.P.C.
(v) The applicant 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 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 and the trial court may proceed against him under Section 229-A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
The bail application is allowed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 23.9.2021 AS Rathore (Samit Gopal,J.)