Court No. - 67
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 17567
of 2021
Applicant :- Papa @ Tausif Alam
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Shekhar Mishra,Shashi Kant Shukla Counsel for Opposite Party :- G.A.,Mohammad Hisham Qadeer,Mohammed Iftekhar
Hon'ble Rahul Chaturvedi,J.
Heard Shri Shashi Kant Shukla, learned counsel for the applicant; Mohammed Iftekhar, learned counsel for the informant connected virtually and learned A.G.A. Perused the record.
By means of the present bail application the applicant, who is facing prosecution in connection with Case Crime No.185 of 2020, u/s 376D, 452, 506 I.P.C., P.S.-Nawabganj, District- Prayagraj (Allahabad), is seeking his enlargement on bail during trial. The applicant is in jail since 02.02.2021.
Submission of learned counsel for the applicant is that initially the informant who is herself the victim has lodged the present F.I.R. after four days of the incident against sole named accused Irsad u/s 376, 452, 506 I.P.C. It is further contended by learned counsel that the victim is a married lady and according to radiological report her age is in between 25-40 years. There are changes in her private organ corresponding to her marital status. The startling feature of the case is that in her 164 statement recorded on 9.6.2020 i.e. after more than two months of the incident, for the first time the victim has added the present applicant in the array of accused, attributing a role of indecently touching her breasts. Contention of the counsel for the applicant is that there is marked and unexplained shifting in the stand of the victim herself and there is no justification coming forward for this change in her stand.
Mohd. Iftekhar, learned counsel for the informant has opposed the prayer for bail tooth and nail and has submitted that the applicant is a dreaded and habitual criminal of the locality and he is not allowing to have a fair trial.
Taking into account the totality of circumstances, more particularly the submissions advanced by Mohd. Iftekhar, learned counsel for the informant which is more speculative in nature, the Court is at loss to appreciate the shifting stand taken by the victim. The victim is herself informant of the F.I.R. and canvassed a particular picture with her favourite colours but after more than two months when her statement u/s 164 Cr.P.C. was recorded she has dragged the name of applicant and also in order to give more serious look to the alleged offence she has added the allegation of gang rape. This is the grossest misuse on the part of the victim/informant and the Court cannot be a party to such type of practice.
Keeping in view the nature of the offence, evidence on record regarding complicity of the accused, 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- Papa @ Tausif Alam, who is involved in aforementioned case crime 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.
(i) 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.
(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 IPC.
(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., 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 IPC.
(iv) 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.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.
Since the bail application has been decided under extra-ordinary circumstances, thus in the interest of justice following additional conditions are being imposed just to facilitate the applicant to be released on bail forthwith. Needless to mention that these additional conditions are imposed to cope with emergent condition-:
1. The applicant shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored.
2. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
3. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
4. 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.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 31.5.2021
M. Kumar