Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2861 of 2019 Applicant :- Shabaz Opposite Party :- State Of U.P.
Counsel for Applicant :- Nazrul Islam Jafri,Khalid Mahmood Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant, Shahbaz, in Case Crime no.2235 of 2018, under Sections 366, 376, 506 IPC, Police Station Loni, District Ghaziabad.
Heard Sri N.I. Jafri, learned counsel for the applicant and Sri Indrajeet Singh Yadav, learned AGA appearing on behalf of the State.
The submission of the learned counsel for the applicant is that though there is a consistent case of rape in the statements of the prosecutrix under Sections 161 and 164 Cr.P.C., but on a reading of the statements of the prosecutrix under Sections 161 and 164 Cr.P.C., the latter being a more detailed statement, it is evident that it is a case of consent. Learned counsel has invited the attention of the Court to the fact that the prosecutrix travelled with the applicant from Ghaziabad to Kalihar by bus, and then by train to some other destination, reaching Haridwar on the following day. It is said that at Kalihar, they stayed in a room, and all during this while they were moving around, where she passed through busy public places, but did not call rescue. It is also said that they roamed about in Haridwar, where also she did not call rescue. It is said that in the account about travel by bus, in the submission of the learned counsel, that she was threatened at knife point by the applicant, but it is difficult to conceive how in a busy public place, a knife would quieten her into silence. It is further pointed out that at Haridwar, there was police checking going on, and, therefore, the applicant threw away the knife, and the threat ended. It is, in particular, pointed out that on seeing the police during the checking, the prosecutrix did not call rescue because the applicant had forbidden her. She proceeded with the applicant to Meerut, the same day, and they were apprehended on way. It is submitted by the learned counsel for the applicant that the prosecutrix was a consenting party as she went along with the applicant to different stations, and now she has come come up with a story of rape, once she has been apprehended. It is, in particular, been pointed out by the learned counsel for the applicant that the prosecutrix is clearly a major going by her recorded date of birth in the High School Certificate, a copy of which is annexed as Annexure 5 at page 33 of the of the paper-book, which shows her date of birth as 08.08.1999, making her to be an all of 19 years on the date of occurrence. Learned counsel submits that looking to the fact that the prosecutrix is a major, and apparently it is a case of consent, there is no justification to detain the applicant in jail pending trial.
Learned A.G.A. has opposed the prayer for bail.
Considering the overall facts and circumstances of the case, the gravity of the offence, the nature of allegations, the severity of punishment, and, in particular, the fact that prima facie the prosecutrix is a major, and the fact that prima facie there is a case of consent, where the prosecutrix moved around with the applicant through busy public places without calling rescue, but without expressing any opinion on merits, this Court finds it to be a fit case for bail.
The bail application, accordingly, stands allowed.
Let the applicant, Shahbaz, in Case Crime no.2235 of 2018, under Sections 366, 376, 506 IPC, Police Station Loni, District Ghaziabad, be released on bail on executing his 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.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. It is further clarified that the trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
Order Date :- 22.1.2019 Anoop