Court No. - 42
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 23334 of 2019 Applicant :- Fm Qureshi Opposite Party :- State Of U.P. Counsel for Applicant :- S. Rashid Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Sri S. Rashid, learned counsel for the applicant, Sri Shoiab Khan, learned A.G.A. for the State and perused the record of the present bail application.
The present bail application has been filed by the applicant – F.M. Qureshi with a prayer to enlarge him on bail in Case Crime No.548 of 2018, under Sections 363, 328, 376, 34 I.P.C. and 3/4 of POCSO Act, Police station Jewar, District Gautam Budh Nagar.
It is argued by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in this case due to ulterior motive. It is argued that as per allegation in the F.I.R., the victim was enticed away by the applicant and co- accused Nazim and Nanhe and on the way after giving intoxicating drink, she was taken to Noida where co-accused Nanhe had sexually assaulted her, and the applicant as well as another co-accused Nazim had helped him. In her statement recorded under Section 161 Cr.P.C., dated 18.06.2018, the victim has stated that co-accused Nanhe had promised her to marry and took her to Jahangirpur, where she was left by him. In her statement under Section 164 Cr.P.C., the version has been totally changed wherein, the victim has stated that she had gone to purchase some articles from the market where the co-accused person namely, F.M., Nanhe and the applicant met her, who forcibly offered cold drink and after taking the same, she became unconscious and was taken to forest. The role of molestation has been assigned to applicant, but in her re- statement dated 03.07.2018, again a different story has been developed wherein it has been alleged that applicant and co- accused Nanhe and Nazim had taken the victim to some place and when she returned in the morning, she was not in a proper sense and was not able to state anything. In her statement before the doctor, again, there is a contradictory variation from the earlier statements recorded under Section 161 and 164 Cr.P.C., in which, she has stated that she left her house on the request of the co-accused Nazim and after taking cold drink she became unconscious and on the next morning when she regained conscious, co-accused Furquan told her that she is in NOIDA, who left her to her home. Learned counsel further contends that perusal of the statements of 161 and 164 Cr.P.C., as well as re- statement and statement before the doctor, every time new story has been developed and there is no reason for believing the allegation of sexual assault as the medical evidence does not corroborate with the same, which is said to have been committed by other co-accused person and the applicant who have been falsely implicated in the present case. Co-accused Nazim and Nanhe, having identical roles, have been granted bail vide orders dated 07.03.2019 and 12.04.2019 passed in Crl. Misc. Bail Application Nos.9965 of 2019 and 44643 of 2018. Accordingly, the applicant is also entitled for bail on the ground of parity. It is next contended that the applicant has no criminal history and there is no possibility of fleeing away from the judicial process or tampering with the witnesses and in case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and the applicant is languishing in jail since 08.03.2019. Accordingly, he requests for bail.
Learned A.G.A. vehemently opposed the prayer for grant of bail to the applicant but could not dispute the aforesaid facts as argued by the learned counsel for the applicant.
The Apex Court in the case of Sanjay Chandra Vs. CBI, (2012) 1 SCC 40 has held that "it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. Seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor : The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required."
Considering the facts and circumstances of the case as well as submissions made by learned counsel for the parties 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, without expressing any opinion on merit of the case, let the applicant involved in aforesaid case crime be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions:-
(i) The applicant shall not indulge in any criminal activity.
(ii) The applicant shall not tamper with the prosecution evidence.
(iii) The applicant shall not pressurize the prosecution witnesses.
(iv) The applicant shall regularly appear on the dates fixed by the trial court unless his personal attendance is exempted by the trial court.
In case of default of any of the conditions enumerated above, it will be open to the opposite parties to approach the Court for cancellation of bail.
Order Date :- 4.6.2019 Anand Sri./-