Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40769 of 2018 Applicant :- Danish Opposite Party :- State Of U.P.
Counsel for Applicant :- Nazrul Islam Jafri Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is a bail application on behalf of the applicant Danish in connection with Case Crime No. 860 of 2018 under Section 498A, 323, 354-kha, 376, 377, 506 IPC and Section 3/4 Dowry Prohibition Act, P.S. Sikandrabad, District Bulandshahar.
Heard Sri N.I. Jafri, learned counsel for the applicant, Sri Rajesh Kumar Kanojia, learned counsel appearing on behalf of the complainant-opposite party and Sri Indrajeet Singh Yadav, learned AGA appearing on behalf of the State.
The submission of learned counsel for the applicant is that the case made out in the FIR is clearly one that has a distinct background of a matrimonial discord to it to being one between the prosecutrix and her husband where the in-laws have been dragged in a case, amongst others, of cruelty under Section 498A IPC. It is submitted that the applicant is a brother-in-law (Devar) against whom there is an allegation of molestation and attempted rape added to the FIR, that is, otherwise one relating to matrimonial cruelty and demand of dowry. Learned counsel for the applicant has invited the attention of the Court to the statement under Section 164 Cr.P.C. where taking a generically different stand about which there is no hint in the FIR, the prosecutrix has come out with a case of rape against the applicant, her brother-in-law, that is the absent in the FIR lodged by the prosecutrix giving rise to the present crime. It is emphasized by the learned counsel for the applicant that the prosecutrix is the author of the FIR, and, therefore, an allegation of rape that has now figured in the statement under Section 164 Cr.P.C. but absent in the FIR cannot be accounted for. It is submitted that the entire prosecution is one that has a matrimonial background to it, and, is patently mala fide.
Learned counsel for the complainant Sri Rajesh Kumar Kanojia and learned AGA have opposed the prayer for bail in voice and invited the attention of the Court to the Statement of the prosecutrix under Section 164 Cr.P.C. and submit that there is a categorical allegation of rape which cannot be ignored. However, they do not dispute that the allegation of rape is not there in the FIR of which the prosecutrix is the author. It is submitted that nevertheless an allegation of outraging her modesty is there.
Considering the overall facts and circumstances, the nature of allegations, the gravity of offence, the severity of the punishment, the evidence appearing against the accused, in particular, the background of relationship between the parties, the essential nature of dispute being a matrimonial discord between the prosecutrix and her husband, the generic difference in the case taken in the FIR and that brought in through the statement under Section 164 Cr.PC. but without expressing any opinion on merits, this Court finds it to be a fit case for bail.
Accordingly, the bail application stands allowed.
Let the applicant Danish involved in Case Crime No. 860 of 2018 under Section 498A, 323, 354-kha, 376, 377, 506 IPC and Section 3/4 Dowry Prohibition Act, P.S. Sikandrabad, District Bulandshahar be released on bail on executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:
i) The applicant shall not tamper with the prosecution evidence.
ii) The applicant shall not threaten or harass the prosecution witnesses.
iii) The applicant shall appear on the date fixed by the trial court.
iv) The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission.
v) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade such person from disclosing facts to the Court or to any police officer or tamper with the evidence.
In case of default of any of the conditions enumerated above, the complainant would be free to move an application for cancellation of bail before this Court.
Order Date :- 26.10.2018 Deepak