Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40952 of 2018 Applicant :- Mustaq Ahmad Opposite Party :- State Of U.P.
Counsel for Applicant :- Parvez Iqbal Ansari Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is a bail application on behalf of the applicant Mustaq Ahmad in connection with Case Crime No. 253 of 2011 under Section 363, 366, 376, 504, 506 and 120-B IPC, P.S. Kotwali, District Mau.
Heard Sri Parvez Iqbal Ansari, learned counsel for the applicant and Sri Nitin Kesharwani, learned AGA along with Sri Rohit Pandey, learned counsel appearing on behalf of the State.
The submission of learned counsel for the applicant is that an FIR was lodged by one Raees Ahmad, the father of the prosecutrix alleging that his minor daughter Km. Sitara had been enticed away by co-accused Mumtaj Ahmad in regard whereto Case Crime No. 239 of 2009 under Section 363, 366 IPC was registered. In the said case, offence under Section 376 IPC was added and informant's daughter was given back into his custody. It is further stated that on 06.05.2010, co-accused Mumtaj Ahmad along with his brothers Mustaq Ahmad and another Naseem Ahmad, with prior concert, came over to the informant's house, and, again took away his minor daughter by blandishment. It is also said in the FIR that the applicant asked back the custody of his minor daughter, as she was under the orders of the court, but he refused threatening him to do to death. Therefore, present FIR has been registered. It is submitted that the co-accused Mumtaj Ahmad has married the prosecutrix according to her free will, and, that the prosecutrix Sitara Devi is a major who has married the co-accused according to her free will. It is submitted that challenging the FIR, the main accused Mumtaj Ahmad filed a Criminal Misc. Writ Petition No. 2725 of 2011 that came to be disposed of by a Division Bench of this Court vide order dated 11.02.2011 granting protection to the petitioners from arrest subject to another direction regarding the recording of the statement of the prosecutrix under Section 164 Cr.P.C. It is also argued that the statement under Section 164 Cr.P.C. was never recorded, and, a charge sheet came to be filed on the basis of statement under Section 161 Cr.P.C. alone. The charge sheet was challenged by the main accused Mumtaj Ahmad through an application under Section 482 Cr.P.C. No. 31065 of 2015 wherein this Court by an order dated 14.11.2017 stayed further proceedings in the present crime recording therein that the prosecutrix and the applicant had got married and had two children born of the wedlock of parties. It is pointed out that later on the said application under Section 482 Cr.P.C. was disposed of directing the parties to surrender and seek bail. The main accused Mumtaj Ahmad has been admitted to bail by an order of the learned Special Judge, POCSO Act/Additional Sessions Judge, Court No. 1 vide order dated 08.12.2017, and, another co- accused, and, the brother of the main accused Vakil Ahmad has been admitted to bail by this Court vide order dated 07.05..2018 passed in Criminal Misc. Bail Application No. 16898 of 2018. It is submitted that the applicant apart from the fact that he is not the main accused, is entitled to parity with Vakil Ahmad as his case stands on identical foot.
Learned AGA has opposed the prayer for bail but does not dispute the factum of parity.
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 factum of parity, 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 Mustaq Ahmad involved in Case Crime No. 253 of 2011 under Section 363, 366, 376, 504, 506 and 120-B IPC, P.S. Kotwali, District Mau 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 :- 27.10.2018 Deepak