Court No. - 69
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38251 of 2021 Applicant :- Asharaf Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ashok Kumar Singh Counsel for Opposite Party :- G.A.
Hon'ble Ajit Singh,J.
Notice has been served on the complainant Jishan, a report regarding service of notice submitted by learned AGA is taken on record.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the entire record.
The present bail application has been filed by the applicant in Case Crime No. 250 of 2021, under Sections 363, 366, 376 (D), 328 IPC and 5/6 of the POCSO Act, Police Station - Civil Lines, District - Aligarh with the prayer to enlarge the applicant on bail.
The report of this incident was lodged against the applicant and co- accused Ziauddin about the enticing away the complainant's sister and committing rape against her. The incident is alleged to have taken place in night at about 8:00 P.M. on 27.05.2021. Information was given to the police.
The contention as raised at the Bar by learned counsel for the applicant is that applicant-accused is quite innocent and has been falsely implicated in the present case. It is submitted by the learned counsel for applicant that the case of the present applicant is similar to the case of Ziauddin (Jainuddin), who has been granted bail, vide order dated 9.12.2021, passed in Crl. Misc. Bail Application No. 35259 of 2021, a copy of which is taken on record of this bail application. It is submitted that the applicant has been implicated only because he happens to be brother of co-accused Ziauddin (Jainuddin). The age of the girl was medically found to be 18 years and she had gone out with friend of the present applicant out of her own sweet will and has solemnized marriage with co-accused Salman who has already been granted bail by another bench of this Court, vide order dated 8.12.2021, passed in Crl. Misc. Bail Application No. 40139 of 2021, a copy of which is taken on record of this bail application. It is also argued that the alleged victim refused her medical examination to be conducted. Further submission is that the criminal history of the present applicant has been explained in para 19 of the affidavit. Lastly, it is argued that the applicant is in jail since 24.06.2021 and that in case applicant is enlarged on bail, he will not misuse the liberty of bail.
Learned A.G.A. has opposed the prayer for bail. But he does not dispute the ground of parity with co-accused.
Keeping in view the submission of learned counsel for the parties, considering the ground of parity, considering that the alleged victim has solemnized marriage with co-accused Salman who has already been granted bail, as narrated above, considering the period of detention of the applicant and considering all other attending facts and circumstances of the case, without expressing any opinion on the merits of the case, at this stage, prima facie, a case for bail has been made out.
The prayer for bail is granted. The application is allowed.
Let applicant Asharaf involved in the aforesaid crime be released on bail on furnishing a personal bond and two local sureties to the satisfaction of court concerned subject to the following conditions:-
(1). The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and 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;
(2). 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;
(3). In case, the applicant misuses the liberty of bail 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 may initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(4). 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the learned counsel for the applicant alongwith a self attested identity proof of the said persons (preferably Aadhar Card) mentioning the mobile number (s) to which the said Aadhar Card is linked before the concerned Court/Authority/Official.
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 :- 17.12.2021 LBY