Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31682 of 2021 Applicant :- Salman Qureshi Opposite Party :- State of U.P.
Counsel for Applicant :- Kashif Zaidi,Bakhteyar Yusuf Counsel for Opposite Party :- G.A.,Desh Ratan Chaudhary,Kuldeep Singh Chahar
Hon'ble Samit Gopal,J.
Heard Sri Bakhteyar Yusuf, learned counsel for the applicant, Sri Desh Ratan Chaudhary and Sri Kuldeep Singh Chahar, learned counsels for the first informant and Sri B.B. Upadhyay, 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- Salman Qureshi, seeking enlargement on bail during trial in connection with Case Crime No.188 of 2021, under Sections 376, 511, 323, 354-B, 504, 506, 386, 392, 411 I.P.C., registered at Police Station Sadar Bazar, District Agra.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. While placing para no.3 and 4 of the affidavit, it has been stated that the applicant and the first informant who is a married lady having two children were having extra-marital affair with each other and they used to have conversation on phone and Whatsapp. The first informant who is the prosecutrix herself had borrowed Rs.One Lakh from the applicant and on repeated reminders to return the same, she refused to return it and lodged the present FIR which is having a concocted story. It is argued that the allegation in the FIR that the applicant tried to commit rape upon the first informant is a totally false and a concocted story. Since there was some relationship between the applicant and the first informant/prosecutrix, there were some communications between them on Whatsapp and voice messages but the applicant never ever threatened the prosecutrix of making them viral as the same could also cause negative impression upon the applicant. It is further argued that even though no such Whatsapp and voice messages have been collected by the police during investigation. The allegation that the applicant assaulted the prosecutrix is also false. As per medical examination report, she is said to have received six injuries on her person but the doctor opined them to be simple in nature. The prosecutrix has refused her internal examination to be done. While placing the statement of the prosecutrix under Section 161 Cr.P.C. and 164 Cr.P.C. it has been argued that the same also bears concocted story and the allegation of attempt to commit rape upon the prosecutrix is false. Even the allegation of taking Rs.8,000/- from the bag of the prosecutrix by the applicant is also false. There is no allegation that the applicant took any other article from the purse of the prosecutrix but police has shown recovery of Rs.10,000/- and adhar card of the prosecutrix to have been recovered from the pocket of the applicant. From the recovered amount of Rs.10,000/-, Rs.5,000/- was said to be the money of the prosecutrix, the same is a total concoction and the money is of the applicant. There is no public witness to the said recovery. The said recovery is just for the sake of falsely implicating the applicant with malafide intentions. It has also been pointed out that the applicant is not having any criminal history as stated in para 24 of the affidavit. The applicant is in jail since 26.06.2021.
Per contra learned counsels for the first informant and learned counsel for the State opposed the prayer for bail and argued that the applicant is named in the FIR, in statement of the prosecutrix under Section 161 Cr.P.C. and 164 Cr.P.C. and there is an allegation against him which are serious in nature. There is a Non-cognizable Report No.0099 of 2021 registered on 9.7.2021 under Section 323, 504 IPC by the prosecutrix/first informant against Shafique, Khalid and Saud who are the brothers of the applicant who had extended threats to the prosecutrix when she has gone to attend the date of the bail application in the District Court, they had assaulted her, copy of the NCR is annexed as annexure no.9 to the affidavit. There is recovery of Rs.5,000/- and adhar card of the prosecutrix which also goes to show that the applicant is involved in the present case, as such the prayer for bail be rejected.
After hearing the counsel for the parties and perusing the record, it is apparent that the applicant and prosecutrix were in relationship with each other and there were communications between them on Whatsapp and voice messages. There is allegation of attempt to commit rape. The recovery is not supported by any independent witness. There is no allegation of the applicant taking away adhar card of the prosecutrix. The NCR which is said to have been registered is against the brothers of the applicant.
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-Salman Qureshi, 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 :- 22.9.2021 Gaurav