Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29207 of 2021 Applicant :- Mohd Azeem Opposite Party :- State of U.P.
Counsel for Applicant :- Bed Kant Mishra Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Heard Sri Bed Kant Mishra, learned counsel for the applicant, Sri Pankaj Mishra, learned counsel for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant-Mohd. Azeem, seeking enlargement on bail during trial in connection with Case Crime No.90 of 2021, under Sections 376, 354-Ga, 386, 506 I.P.C., registered at Police Station Rail Bazaar, District Kanpur Nagar.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that FIR in the present matter has been got registered by the victim herself under Section 354-Ga, 386, 506 IPC and subsequently in her statement recorded under Section 161 Cr.P.C., the victim/first informant has stated that the applicant committed rape upon her and then Section 376 I.P.C. was added. As per own version of the victim, she is a married lady having a son and she has disclosed her age as 30 years in her statement under Section 161 Cr.P.C. It is further argued that the victim has refused her medical examination to be done and the same was noted by the doctor, copy of the same is annexed as annexure no.3 to the affidavit. The allegation against the applicant is that he while practicing exorcism, gave some water to the victim to drink after which she states to be not in her senses and then the applicant committed rape and clicked various photographs and recorded video clips and on that pretext, he used to blackmail her and continued to commit rape upon her. It is further argued that no such photograph or video has been recovered by the Investigating Officer during investigation and the allegation to the contrary is false. It is further argued that charge sheet has been submitted in the present matter and as such there are no chances of the applicant tempering with the evidence. It has also been pointed out that the applicant is not having any criminal history as stated in para 15 of the affidavit and is in jail since 17.04.2021.
Per contra learned A.G.A. has opposed the prayer for bail and argued that the applicant is named in the FIR and there is an allegation of his committing rape upon the victim in the statement recorded under Section 161 Cr.P.C. and 164 Cr.P.C. after practicing exorcism, as such prayer for bail be rejected.
After hearing the counsel for the parties and perusing the record, it is apparent that in the FIR, there was no allegation of rape being committed upon the victim. The case was only confined to the allegation that the applicant clicked some objectionable photographs and prepared video recording and blackmailed the victim but subsequently in her statement recorded under Section 161 Cr.P.C. and 164 Cr.P.C., allegation of rape has surfaced. The allegation of giving Rs.25,000/- to the applicant by the victim is also without any evidence. The victim had herself approached the applicant for some disturbance in her family.
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-Mohd. Azeem, 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.
(Samit Gopal, J.) Order Date :- 16.8.2021 Gaurav