Court No. - 72
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21783 of 2021 Applicant :- Musahid Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anil Kumar Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicant, learned Additional Government Advocate representing the State and perused the record of the case.
The instant bail application has been filed on behalf of the applicant with a prayer to release him on bail in Case Crime No. 357 of 2020, under Sections 323, 376, 506, 420 I.P.C., Police Station-Ganjdundwara, District-Kasganj during the pendency of trial.
As per prosecution case in brief, informant Jameer Ahmad lodged F.I.R. on 17.12.2020 against the applicant alleging inter alia that applicant was having a physical relation with his sister on the pretext of marriage since last one year. The F.I.R. further alleges that applicant also taken obscene photographs and made video of his sister and refused to marry her.
It is argued by learned counsel for the applicant that as per medical examination report, radiological age of the victim is 19 years and she is major. It is next submitted that as per statements under Section 161 and 164 Cr.P.C. of the victim, it is apparent that she was closely associated and was in touch with the applicant on phone since last three years. So far as allegation of rape on the pretext of marriage and taking her obscene photographs and making video are concerned, it is submitted that neither any obscene photographs nor alleged video have been given by her to the Investigating Officer. The allegation in this regard are wholly false and against the evidence on record. It is submitted that when informant was in jail, his wife requested the applicant to make arrangement of Rs.50,000/-, as the same was urgently needed to her. Applicant considering the relationship of neighbourhood given Rs.50,000/- to her. On demanding his money by the applicant, he was threatened by the informant to falsely implicate him in a case of rape. Applicant having no option left filed a complaint case on 21.07.2020 registered as Case No. 865 of 2020 (Musahid Husain Vs. Chand Miyan and others), which is pending before the concerned court below. Copy of the same has been filed as Annexure no.5 to the bail application. Applicant has no criminal history and he is languishing in jail since 03.04.2021. In case, applicant is released on bail, he will not misuse the liberty of bail.
Per contra learned A.G.A. has opposed the prayer for bail but upon taking instruction submits that Investigating Officer has submitted charge sheet and there is no alleged obscene photographs and video are on record.
After having heard the argument of learned counsel for the parties, I find that victim is major and though she has made an allegation of rape against the applicant on the pretext of marriage but considering the facts and circumstances of the case and statements of victim in toto, possibility of victim being consenting party with the applicant cannot be ruled out, because she is major and she was capable of understanding the complications and issues surrounding her marriage. From the statement of the victim, it is apparent that she had inclination towards the applicant.
Keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, the Court is of the opinion that it is a fit case for bail. Hence, the bail application is hereby allowed.
Let the applicant-Musahid 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 shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) 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. is issued and the 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 of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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.
(v) The applicant shall file computer generated copy of this order downloaded from the official website of High Court Allahabad.
(vi) The computer generated copy of this order shall be self attested by the counsel of the party concerned. Following injuries.
(vii) 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.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
Order Date :- 29.7.2021 Rahul.
Digitally signed by Justice Sanjay Kumar Singh Date: 2021.08.02 10:18:04 IST Reason: Document Owner Location: High Court of Judicature at Allahabad