Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29159 of 2021 Applicant :- Ausaf Ali @ Sharuf Opposite Party :- State of U.P.
Counsel for Applicant :- Shamshuddin Khan Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Heard Sri Shamshuddin Khan, learned counsel for the applicant, Sri Akhilesh Kumar Tripathi, learned counsel for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure which has been filed by the applicant Ausaf Ali @ Sharuf, seeking enlargement on bail during trial in connection with Case Crime No. 71 of 2021, under Sections 376, 504 I.P.C., Police Station Shankargarh, District Prayagraj.
Learned counsel for the applicant argued that the victim who is the first informant in the case and is a major from the certificate issued by the C.M.O. wherein her age has been opined to be about 18 years, copy of the same is annexed at page 31 to the affidavit. It is argued that as per the certificate of the radiologist, copy of which is annexed at page 30 radiological age of the victim as on 15.03.2021 is opined to be above 18 years and below 20 years. It is argued that although the applicant is named in the First Information Report and there is an allegation of his committing rape upon the victim since the last two years for which the First Information Report has been registered on 12.03.2021 but the same is a false and a concocted story. It is argued that on the own showing of the victim/first informant she was in a love affair with the applicant and the physical relationship between the two was with consent. It is argued that by giving a margin of two years on either sides of the age as opined the victim would be a major even two years prior to the lodging of the First Information Report. It is next argued that there was some dispute between the parties with regards to the marriage of the applicant with the victim and since the marriage could not be solemnized, the present First Information Report has been registered which is even the case of the first informant in the First Information Report. The medical examination does not corroborate the prosecution story. It is argued that as such the applicant has been falsely implicated in the present case. He further argued that the applicant has no criminal history as stated in para 13 of the affidavit and is in jail since 13.03.2021.
Per contra, learned counsel for the State opposed the prayer for bail and argued that the applicant allured the victim and untangled her in his love affair on the pretext of which he established physical relationship with her and later on when the victim told him to marry her he denied the same. It is argued that as such the prayer for bail of the applicant be rejected.
After having heard learned counsels for the parties and perusing the records, it is evident that the victim has been opined to be of about 19 years of age by the C.M.O. concerned and her radiological age by the radiologist has been opined to be above 18 years and below 20 years. The relationship between the applicant and the victim was of a love affair after which some dispute arose between them for marriage with the applicant since the applicant had refused to marry her and hence the present First Information Report has been registered.
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 Ausaf Ali @ Sharuf, 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 :- 16.8.2021 M. ARIF (Samit Gopal, J.)