Court No. - 43
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20634 of 2021 Applicant :- Sadiq Opposite Party :- State Of U.P Counsel for Applicant :- Vinay Kumar Tripathi Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Matter taken up through video conferencing.
Heard Sri Vinay Kumar Tripathi, learned counsel for the applicant, Sri Virendra Kumar Maurya, learned AGA 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 Sadiq, seeking enlargement on bail during trial in connection with Case Crime No. 723 of 2020, under Section(s) 147, 323, 376, 506 I.P.C. registered at P.S. Sadar Bazar, District Shahjahanpur.
Learned counsel for the applicant argued that the applicant who is jeth of the victim, has been falsely implicated in the present case. It is argued that occurrence in the present case is said to have taken place on 03.10.2020 at about 8.00 P.M. whereas the F.I.R. has been lodged on 21.12.2020 by the prosecutrix herself in which she has named as many as nine accused persons including the applicant but has levelled allegation of rape only against the applicant. It is argued while placing the statements recorded under Sections 161 and 164 Cr.P.C. of the victim, copies of which are annexure nos. 2 and 4 respectively to the affidavit filed in support of bail application, that in the same the victim has then added the name of her devar Shadab and has also stated that after the applicant had committed rape on her, he also committed rape on her.
Learned counsel has then placed annexure no. 5 to the affidavit before the Court which is the second statement recorded under Section 161 Cr.P.C. of the victim, and has argued that in the said statement she has stated that she has taken the name of Shadab on the advise and instruction of her lawyer but he did not commit rape upon her. Learned counsel has argued that co- accused Nasimuddin (father-in-law), who is also co-accused in the present case, has in his statement stated that there is a family dispute going on in the family regarding property which is the reason of false implication of the accused persons by the first informant and her husband, copy of which is annexure no. 6 to the affidavit.
It is argued that the victim is a married lady and has disclosed her age to be about 30 years. It is argued that implication of the applicant is false and with malafide intention due to dispute within the family members regarding property. It is further argued that the First Information Report is also delayed by about three months for which there is no explanation whatsoever which goes to show that the same is an afterthought just in order to falsely implicated and harass the applicant and other accused persons. It is argued that the applicant has no other criminal antecedents as stated in para- 26 of the affidavit and is in jail since 02.2.2021.
Per contra, learned AGA opposed the prayer for bail and argued that the applicant is named in the First Information Report and in the statements recorded under Sections 161 and 164 Cr.P.C. of the victim wherein it has been stated that he has committed rape upon the victim. It is argued that as such implication of the applicant is consistent. It is argued that looking to the facts of the case, the prayer for bail be rejected.
After having heard learned counsels for the parties and perusing the record, it is apparent that the applicant is jeth, father-in-law of the victim has in his statement stated that there is a family dispute going on between family members regarding property, the F.I.R. is delayed by about three months without any explanation, one of the accused persons namely Shadab was introduced in the statements recorded under Sections 161 and 164 Cr.P.C. of the victim but later on exonerated by the victim herself by stating that she had named him on the advise of her lawyer and as such consultation, advise and suggestion of a lawyer is also there and possibility of said consultation right from inception cannot be ruled out.
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- Sadiq, 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.
Order Date :- 28.5.2021 Naresh Digitally signed by Justice Samit Gopal Date: 2021.05.28 14:38:20 IST Reason: Document Owner Location: High Court of Judicature at Allahabad