Court No. - 78
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 37886 of 2019 Applicant :- Faizan Ahmad Opposite Party :- State Of U.P.
Counsel for Applicant :- Naveen Kumar Yadav Counsel for Opposite Party :- G.A.,Shahroz
Hon'ble Siddharth,J.
Counter affidavit filed by Sri Shahroz, learned counsel for the informant, is taken on record.
Heard learned counsel for the applicant and learned A.G.A. for the State.
Submission is that the applicant has been falsely implicated in this case. He is well known to the family of the victim. There was affair between two. It has been submitted that in the statement of the victim under Section 161 Cr.P.C, no allegation of rape has been levelled against the applicant. Under Section 164 Cr.P.C. she has levelled allegation of rape against the applicant. It has been submitted that the victim has admitted sleeping in open verandah and not in any room and therefore, the question of rape where the parents and other members are present is not credible. There are factual contradictions in the statements of the victim under Section 161 and 164 Cr.P.C. The age of the victim has been found above 17 years. As per medical report her age is 19 years. Giving margin of two years on higher side she can be presumed to be major. The applicant is in jail since 02.07.2019 and has no criminal history to his credit.
Sri Shahroz Khan, learned counsel for the informant, has vehemently opposed the bail application and has submitted that on account of misconduct of the Investigating Officer proper investigation has not conducted and the charge-sheet has not been submitted under Section 376 I.P.C when the victim has clearly made such an allegation in her statement under Section 164 Cr.P.C. It has further been submitted that the victim is aged only 17 years and therefore the offence under the POCSO Act is clearly made out against the applicant. Applicant has tried to outrage modesty of the victim and therefore, he does not deserves to be enlarged on bail.
Learned AGA has also opposed the prayer for bail.
Keeping in view the nature of the offence, evidence on record regarding complicity of the accused, submissions of the learned counsel for the parties noted herein above, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018)3 SCC 22 and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
Let the applicant, Faizan Ahmad, involved in Case Crime No.184 of 2019, under Sections 354ka, 452 IPC and Section 7/8 POCSO Act, Police Station Dudhara, District- Sant Kabir Nagar be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.
1. The applicant will not tamper with the evidence during the trial.
2. The applicant will not pressurize/ intimidate the prosecution witness.
3. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
4. The applicant shall not commit an offence similar to the offence of which they are accused, or suspected of the commission of which they are suspected.
5. 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 them from disclosing such facts to the Court or to any police officer or tamper with the evidence.
In case of breach of any of the above conditions, the complainant is free to move an application for cancellation of bail before this court.
Order Date :- 26.9.2019 SS