Tasleem v. State of U.P.). For ready reference, the same is reproduced here
Case Details
Neutral Citation No. - 2024:AHC:110142 Court No. - 64 Case :- CRIMINAL MISC. BAIL CANCELLATION APPLICATION No. - 118 of 2024 Applicant :- Farzana Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vijay Kumar Rai Counsel for Opposite Party :- Chandan Kumar Jaiswal,G.A. Hon'ble Rajeev Misra,J. 1. Heard Mr. Vijay Kumar Rai, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and Mr. Chandan Kumar Jaiswal, the learned counsel representing accused/opposite party 2. 2. Perused the record.
Facts
3. This bail cancellation application has been filed by the first informant/prosecutrix namely Farzana seeking cancellation of bail granted to accused/opposite party-2 vide order dated 18.07.2023 passed in Criminal Misc. Bail Application No. 19347 of 2023 (Tasleem Vs. State of U.P.). For ready reference, the same is reproduced herein-under
Legal Reasoning
Alvi vide order dated 18.07.2023 passed by this Court in Criminal Misc. Bail Application No. 19347 of 2023. 3. Notice on behalf of opposite party-1 has been accepted by the learned A.G.A. 4. Issue notice to opposite party-2. Notice shall be made returnable on 06.05.2024. Notice shall further indicate that matter shall reappear as fresh on 06.05.2024. 5. All the opposite parties may file their respective counter affidavits on or before 06.05.2024. 6. Put up again as fresh on 06.05.2024. Order Date :- 15.4.2024 " 5. In spite of a the fact that a period of more than two and a half months has rolled by since then, no counter affidavit has been filed by accused/opposite party-2 in opposition to present application for cancellation of bail. However, the learned A.G.A. has filed a counter affidavit in present bail cancellation application. He has, however, supported the bail cancellation application. 6. Learned counsel for applicant contends that subsequent to the order dated 18.07.2024 passed by this court, whereby, accused/opposite party-2 was enlarged on bail, accused/opposite party 2 has not only violated the conditions of bail but also threatened the prosecutrix. To buttress his submission, he has referred to the F.I.R. lodged by the prosecutrix on 11.08.2023, which was registered as Case Crime No. 0228 of 2023 under Section 506 I.P.C., Police Station-Collector Ganj, District- Bareilly. In the aforesaid F.I.R. accused/opposite party-2, Tasleem has been nominated as solitary named accused. 7. Learned A.G.A. submits that after completion of statutory investigation of aforementioned case crime number in terms of Chapter XII Cr. P. C, a police report (charge sheet) in terms of Section 173(2) Cr.P.C. has already been submitted against accused/opposite party-2 on 06.12.2023. 8. It is next contended by the learned counsel for applicant that another F.I.R. dated 04.04.2024 was lodged by applicant against accused/opposite party-2, which was registered as Case Crime No. 125 of 2024 under Section 354 I.P.C. Police Station-Kitwali, District/ Bareilly. In the aforesaid F.I.R., accused/opposite party-2 Tasleem alongwith one another co-accused, namely, Fahim, have been nominated as named accused whereas one unknown person has also been arraigned as an accused. He further submits that investigation in respect of aforesaid case crime number is sill going on. 9. On the above premise, the learned counsel for applicant contends that since the applicant is guilty of violating the liberty of bail extended in his favour by this Court, therefore, bail granted to the accused/opposite party-2 is liable to cancelled. 10. In spite of service of notice, no counter affidavit has been filed by accused/opposite party-2 in opposition to the present application for cancellation of bail. 10. Admittedly, no counter affidavit has been filed by accused/opposite party-2 in opposition to the present bail cancellation application. As such, the averments made in the affidavit filed in support of this bail cancellation application remain uncontrovered on behalf of accused/opposite party-2. 11. Having heard the learned counsel for applicant, the learned A.GA for State-opposite party-1, Mr. Chandan Kumar Jaiswal, the learned counsel representing accused/opposite party-2 and upon perusal of record and coupled with the fact the F.I.Rs. dated 11.08.2023 and 04.04.2024 as noted herein above have been lodged by applicant against accused/opposite party-2, it is evident that accused/opposite party-2 has misused the liberty of bail. In view of above, no good ground exists to permit the accused/opposite party-2 to be on bail. 12. As a result bail cancellation application filed by applicant succeeds and is liable to allowed. 13. Accordingly, present bail cancellation application is allowed. 14. In view of above, bail granted to the accused/opposite party-2, Tasleem vide order dated 18.07.2023 shall stand cancelled. Accused/opposite party-2, Tasleem shall be taken into custody forthwith. Order Date :- 8.7.2024 YK
Arguments
"1. Heard Mr. Mohammad Waseem, the learned counsel for applicant, the learned A.G.A. for State and Mr. Ehtesham Afsar Khan, the learned counsel representing first informant/ opposite party-2. 2. Perused the record. 3. Instant application for bail has been filed by applicant-Tasleem seeking his enlargement on bail in Case Crime No. 85 of 2023 under Sections 376, 328 I.P.C., Police Station- Hafizganj, District-Bareilly, during the pendency of trial. 4. Record shows that in respect of an incident, which is alleged to have occurred on 23.01.2023 a delayed F.I.R. dated 03.03.2023 was lodged by first informant, Ms. Farzana (the prosecutrix) and was registered as Case Crime No. 85 of 2023 under Sections 376, 328 I.P.C., Police Station- Hafizganj, District-Bareilly. In the aforesaid F.I.R. applicant Tasleem has been nominated as solitary named accused. 5. The gravamen of the allegations made in the F.I.R is to the effect that first informant/prosecutri is aged about 22 years and pursuing her LLB Ist Year Course. The applicant is alleged to have blackmailed the prosecutrix and thereafter, repeatedly dislodged her modesty. The F.I.R. further records that certain obscene photographs of the prosecutrix were snapped by applicant and a video of the prosecutrix against her modesty was made by named accused. Thereafter, the prosecutrix requested the applicant to solemnize marriage with her which was refused by him. 6. After aforementioned F.I.R. was lodged, the statement of the prosecutrix was recorded under Section 161 Cr.P.C. In the aforesaid statement, the prosecutrix has supported the F.I.R.. but has stated that she willingly went to meet the applicant. However, some stupefying substance was given to the prosecutrix by applicant and thereafter her modesty was dislodged. Some obscene photographs of the prosecutrix were snapped and a video of the prosecutrix which is against her modesty was also made by applicant. On the basis of above, the prosecutrix was blackmailed and her modesty was dislodged by the applicant by committing rape repeatedly. 7 Prosecutrix was thereafter requested for her medical examination. The prosecutrix in her statement before the Doctor has supported her earlier statement recorded under Section 161 Cr.PC. However, the Doctor, who examined the prosecutrix, did not find any signs on the body of prosecutrix so as to denote commission of sexual violence. With regard to the private part of the prosecutrix, the Doctor opined against the prosecutrix. Certain samples were taken from the body of the prosecutrix for pathological examination. However, the result of the same was negative. 8. Ultimately, the statement of the prosecutrix was recorded under Section 164 Cr.P.C. wherein the prosecutrix has rejoined her earlier statement under Section 161 Cr.P.C. referred to above. 9. Learned counsel for applicant submits that though the applicant is a named accused but he is innocent. He has been falsely implicated in concerned case crime number. As such applicant is liable to be enlarged on bail. The prosecutirx is major as per the recital contained in the F.I.R. itself. She is a consenting party. 10. From perusal of the statement of the prosecutrix as recorded under Section 161 Cr.P.C. it is evident that the prosecutrix is a willing and consenting party. There is delay in lodging the F.I.R. inasmuch as occurrence is alleged to have occurred on 23.01.2023 whereas the F.I.R. was lodged on 03.03.2023. However, neither in the F.I.R. nor in the statement of prosecutrix under Section 161 Cr.P.C. the prosecutrix has explained the delay in lodging the F.I.R. Attention of the Court was then invited to Paragraph 8 of the judgement of Apex Court in P. Rajagopal Vs. State of Tamilnadu, AIR 2019 SC 2866. It is thus urged by the learned counsel for applicant that since the delay in lodging the F.I.R. has not been explained, the prosecution of applicant itself cannot be maintained. No offence uner the I.T. Act can be said to have been committed by applicant. as no obscene material prepared by electronic means has been recovered. Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in custody since 07.03.2023. As such, he has undergone more than four months of incarceration. He therefore contends that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. 11. Per contra, the learned A.G.A. for State and the learned counsel representing first informant/opposite party-2 have vehemently opposed the prayer for bail. They submit that since the applicant is a named accused, therefore, he does not deserve any indulgence by this Court. Applicant is guilty of dislodging the modesty of the prosecutrix by blackmailing her. Offence complained of is not private in nature but a crime against society. As such, no sympathy be shown by this Court in favour of applicant. However, they could not dislodge the factual and legal submissions urged by learned counsel for applicant with reference to the record at this stage. 12. Having heard the learned counsel for applicant, the learned A.G.A., the learned counsel representing first informant, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant, submission urged by learned counsel for applicant as noted herein above which could not be dislodged by the learned A.G.A. or by the learned counsel representing first informant, but without making any comments on the merits of the case, applicant has made out a case for bail. 13. Accordingly, present application for bail is allowed. 14. Let the applicant-Tasleem involved in aforesaid case crime number 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) Applicant will not tamper with prosecution evidence. (ii) 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) Applicant will not indulge in any unlawful activities. (iv) Applicant will not misuse the liberty of bail in any manner whatsoever. 15. 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 of applicant and send him to prison. Order Date :- 18.7.2023 " 4. Present bail cancellation application came up for orders on 15.04.2024 and this Court passed the following order: "1. Heard Mr. Vijay Kumar Rai, the learned counsel for applicant, the learned A.G.A. for State-opposite party 1. 2. This bail cancellation application has been filed by first informant seeking cancellation of bail granted to accused opposite party-2, Tasleem