Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21728 of 2021 Applicant :- Sameer Opposite Party :- State of U.P.
Counsel for Applicant :- Afzal Ahmad Khan Durrani Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Heard Sri Afzal Ahmad Khan Durrani, learned counsel for the applicant, Sri B.B. Upadhyay, 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 Sameer, seeking enlargement on bail during trial in connection with Case Crime No. 0182 of 2021, under Sections 376D, 328, 323, 504, 506, 313 I.P.C. registered at P.S. Kaushambi, District Ghaziabad.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the prosecutrix is a major girl and her date of birth as per High School Marks Sheet is 01.1.1999. She was in relationship with Sameer Yadav @Shahrukh the brother of the applicant since 2015 when they were studying in the same school and were friends. It is argued that the present F.I.R. has been lodged only due to the reason that there was some understanding between the co-accused Sameer Yadav @Shahrukh and the prosecutrix regarding marriage but the same could not materialize and then the present F.I.R. has been lodged against the applicant and his family members. It is argued that the F.I.R. has been lodged with a great delay of about five years.
It is argued that the allegation that the co-accused Sameer Yadav@Shahrukh had clicked some objectionable photographs and had prepared some video of the prosecutrix is also false and incorrect as the police did not recover any such video or photographs during investigation. It is argued that the allegation that in February 2021 after the prosecutrix became pregnant she went to the house of the applicant and asked for help, then the co-accused Sameer Yadav@Shahrukh and the applicant committed rape upon her is false and with malafide intentions just in order to falsely implicate the applicant and other family members. It is argued that the prosecution case is a case of total falsity. It is argued that the applicant has no other criminal antecedents as stated in para-21 of the affidavit and is in jail since 24.3.2021.
Per contra, learned AGA opposed the prayer for bail and argued that the applicant is named in the F.I.R., in the statements recorded under Sections 161 and 164 Cr.P.C. of the prosecutrix and, there is an allegation of gang rape upon the prosecutrix. It is prayed that the prayer for bail be rejected.
After having heard learned counsels for the parties and perusing the record, it is evident that the prosecutrix is a major girl. She was in relationship since 2015 to 2021 with the co-accused Sameer Yadav@Shahrukh the brother of the applicant and had become pregnant also and after that there is an allegation that the applicant and his brother Sameer Yadav@Shahrukh committed rape upon her. The F.I.R. has been lodged after five years and there is no explanation whatsoever about the delay. No such photograph and video have been recovered during investigation.
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- Sameer, 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 :- 27.9.2021 Naresh (Samit Gopal,J.)