High Court

Applicant :- Mohd. Shahbad (As Fir ) @ Mohd Shahbaz Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Another Counsel for Applicant :- Ali Moid,Mohd. Salman,Suraj Kumar,Sushil Kumar Yadav Counsel for Opposite Party :- G.A. Hon'ble Rajesh Singh Chauhan,J.

1. Heard Sri Akash Deep Singh, learned counsel for the applicant and Sri Bhanu Pratap Singh, learned A.G.A. for the State.

2. Despite the service of notice on opposite party no. 2 none has appeared. The office report dated 22.2.2025 refers a report of C.J.M., Pratapgarh which has been enclosed as Flag X which indicates that the notice has been served upon opposite party no. 2 telephonically.

3. It has been contended by the learned counsel for the applicant that the applicant is in jail since 18.8.2024 in Crime No. 167 of 2024 u/s 87/64/3(8) BNS (earlier 366, 376, 37 IPC) P.S. Sangipur, District Pratapgarh. It has been submitted that the applicant has been falsely implicated in this case as he has not committed any offence as alleged.

4. Attention has been drawn towards impugned F.I.R. wherein the general allegation of committing rape has been levelled against the present applicant and his real brother, however, while recording her statement u/s 161 Cr.P.C. (Annexure no. 3 ) no allegation whatsoever has been levelled against the present applicant but she has stated that she is a girl of 19 years, is having relation with co-accused Shahzad, the brother of the present applicant. She had gone with him. The present applicant has asked the prosecutrix to marry with his brother, co-accused and she had gone to Amethi through tempo and thereafter she came to Lucknow from Amethi. In the aforesaid statement she has not levelled any allegation against any accused person, however, while recording her statement u/s 183 B.N.S.S. (Annexure C.A.-4). In the first part of the statement recorded before the Magistrate she has levelled allegation against the present applicant and in the second part of the statement she has stated that the present applicant has not committed any offence rather co-accused who is brother of the applicant has committed rape.

5. At this stage, I am constraint to observe that when the aforesaid statement was recorded before the Magistrate wherein two different stories have been stated, at least the Magistrate must have asked specific question from the prosecutrix as to who is the person who has committed rape with her inasmuch as the perusal of the statement recorded u/s 183 BNSS reveals that there is apparent contradiction and variation in the aforesaid statement. The notice could have been issued to the Magistrate before whom the aforesaid statement was recorded but a note of caution is issued to such Magistrate to remain careful in future.

6. The learned District Judge, Pratapgarh may take notice of the aforesaid fact and take appropriate steps which is permissible under the law.

7. Learned counsel for the applicant stated that since there are apparent variations and contradiction right from the lodging of the F.I.R., statement recorded u/s 161 Cr.P.C. and statement u/s 183 BNSS the benefit thereof may be given to the present applicant. The present applicant is having no prior criminal history of any kind whatsoever. Charge-sheet has been filed in this case.

8. The learned counsel for the applicant has given an undertaking on behalf of applicant that the applicant shall not misuse the liberty of bail and shall cooperate with the trial proceedings and shall abide by all terms and conditions of bail, if granted.

9. Learned A.G.A. opposed the prayer for bail but could not dispute the aforesaid facts as argued by the learned counsel for the applicant.

10. Without entering into the merits of the case and considering the arguments of learned counsel for the parties, contents and allegations of the F.I.R., the fact that in the F.I.R. general allegation of committing rape has been levelled against the present applicant and his real brother, however, while recording her statement u/s 161 Cr.P.C. no allegation whatsoever has been levelled against the present applicant, in the statement she has not levelled any allegation against any accused person, however, while recording her statement u/s 183 B.N.S.S. in the first part of the statement recorded before the Magistrate she has levelled allegation against the present applicant and in the second part of the statement she has stated that the present applicant has not committed any offence rather co-accused who is brother of the applicant has committed rape, there are apparent variations and contradiction right from the lodging of the F.I.R., statement recorded u/s 161 Cr.P.C. and in the statement u/s 183 BNSS, applicant is having no prior criminal history of any kind whatsoever, charge-sheet has been filed in this case and the undertaking given on behalf of the applicant that he shall not misuse the liberty of bail and shall cooperate in the trial proceedings, the applicant is entitled to be released on bail in this case.

11. Bail application is allowed.

12. Let the applicant Mohd. Shahbad (As Fir ) @ Mohd Shahbaz, involved in aforesaid 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 with the following conditions which are being imposed in the interest of justice:- (i) The applicant shall file an undertaking to the effect that he / she shall not seek any adjournment on the dates 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 / her under Section 269 of the B.N.S., 2023. (iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 84 of B.N.S.S., 2023 may be issued and if the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him / her in accordance with law, under Section 208 of the B.N.S., 2023. (iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 351 of B.N.S.S., 2023. 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 / her in accordance with law. . Order Date :- 10.7.2025 Om (Rajesh Singh Chauhan, J.)

Applicant :- Mohd. Shahbad (As Fir ) @ Mohd Shahbaz Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Another Counsel for Applicant :- Ali Moid,Mohd. Salman,Suraj Kumar,Sushil Kumar Yadav Counsel for Opposite Party :- G.A. Hon'ble Rajesh Singh Chauhan,J.

1. Heard Sri Akash Deep Singh, learned counsel for the applicant and Sri Bhanu Pratap Singh, learned A.G.A. for the State.

2. Despite the service of notice on opposite party no. 2 none has appeared. The office report dated 22.2.2025 refers a report of C.J.M., Pratapgarh which has been enclosed as Flag X which indicates that the notice has been served upon opposite party no. 2 telephonically.

3. It has been contended by the learned counsel for the applicant that the applicant is in jail since 18.8.2024 in Crime No. 167 of 2024 u/s 87/64/3(8) BNS (earlier 366, 376, 37 IPC) P.S. Sangipur, District Pratapgarh. It has been submitted that the applicant has been falsely implicated in this case as he has not committed any offence as alleged.

4. Attention has been drawn towards impugned F.I.R. wherein the general allegation of committing rape has been levelled against the present applicant and his real brother, however, while recording her statement u/s 161 Cr.P.C. (Annexure no. 3 ) no allegation whatsoever has been levelled against the present applicant but she has stated that she is a girl of 19 years, is having relation with co-accused Shahzad, the brother of the present applicant. She had gone with him. The present applicant has asked the prosecutrix to marry with his brother, co-accused and she had gone to Amethi through tempo and thereafter she came to Lucknow from Amethi. In the aforesaid statement she has not levelled any allegation against any accused person, however, while recording her statement u/s 183 B.N.S.S. (Annexure C.A.-4). In the first part of the statement recorded before the Magistrate she has levelled allegation against the present applicant and in the second part of the statement she has stated that the present applicant has not committed any offence rather co-accused who is brother of the applicant has committed rape.

5. At this stage, I am constraint to observe that when the aforesaid statement was recorded before the Magistrate wherein two different stories have been stated, at least the Magistrate must have asked specific question from the prosecutrix as to who is the person who has committed rape with her inasmuch as the perusal of the statement recorded u/s 183 BNSS reveals that there is apparent contradiction and variation in the aforesaid statement. The notice could have been issued to the Magistrate before whom the aforesaid statement was recorded but a note of caution is issued to such Magistrate to remain careful in future.

6. The learned District Judge, Pratapgarh may take notice of the aforesaid fact and take appropriate steps which is permissible under the law.

7. Learned counsel for the applicant stated that since there are apparent variations and contradiction right from the lodging of the F.I.R., statement recorded u/s 161 Cr.P.C. and statement u/s 183 BNSS the benefit thereof may be given to the present applicant. The present applicant is having no prior criminal history of any kind whatsoever. Charge-sheet has been filed in this case.

8. The learned counsel for the applicant has given an undertaking on behalf of applicant that the applicant shall not misuse the liberty of bail and shall cooperate with the trial proceedings and shall abide by all terms and conditions of bail, if granted.

9. Learned A.G.A. opposed the prayer for bail but could not dispute the aforesaid facts as argued by the learned counsel for the applicant.

10. Without entering into the merits of the case and considering the arguments of learned counsel for the parties, contents and allegations of the F.I.R., the fact that in the F.I.R. general allegation of committing rape has been levelled against the present applicant and his real brother, however, while recording her statement u/s 161 Cr.P.C. no allegation whatsoever has been levelled against the present applicant, in the statement she has not levelled any allegation against any accused person, however, while recording her statement u/s 183 B.N.S.S. in the first part of the statement recorded before the Magistrate she has levelled allegation against the present applicant and in the second part of the statement she has stated that the present applicant has not committed any offence rather co-accused who is brother of the applicant has committed rape, there are apparent variations and contradiction right from the lodging of the F.I.R., statement recorded u/s 161 Cr.P.C. and in the statement u/s 183 BNSS, applicant is having no prior criminal history of any kind whatsoever, charge-sheet has been filed in this case and the undertaking given on behalf of the applicant that he shall not misuse the liberty of bail and shall cooperate in the trial proceedings, the applicant is entitled to be released on bail in this case.

11. Bail application is allowed.

12. Let the applicant Mohd. Shahbad (As Fir ) @ Mohd Shahbaz, involved in aforesaid 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 with the following conditions which are being imposed in the interest of justice:- (i) The applicant shall file an undertaking to the effect that he / she shall not seek any adjournment on the dates 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 / her under Section 269 of the B.N.S., 2023. (iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 84 of B.N.S.S., 2023 may be issued and if the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him / her in accordance with law, under Section 208 of the B.N.S., 2023. (iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 351 of B.N.S.S., 2023. 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 / her in accordance with law. . Order Date :- 10.7.2025 Om (Rajesh Singh Chauhan, J.)