High Court

Hon'ble Nalin Kumar Srivastava,J.

1. Despite service of notice, none is present for the informant / opposite party no.2.

2. This criminal appeal under Section 14-A (2) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred by the appellant - Shahid with the prayer to allow the appeal, set aside the bail rejection order dated 7.1.2025 passed by Addl. District & Sessions Judge / Special Judge (SC/ST Act), Hapur and release the appellant on bail in case crime no.615 of 2024 under Sections 64, 351 (2) B.N.S. and Section 3 (2) 5 S.C./S.T. Act, Police Station Garhmukteshwar, District Hapur.

3. Heard learned counsel for the appellant, learned A.G.A. for the State and perused the entire record.

4. Prosecution story, as unfolded in the F.I.R., is that on 18.11.2024, when the sister of the informant, aged 18 years, had gone to her school, she was enticed away by the appellant Shahid, who took her by motorcycle to OYO Hotel and in the room of the Hotel rape was committed with the victim by said Shahid and he also threatened her not to disclose it to anyone. However, F.I.R. of this case was lodged on 22.11.2024 when the victim disclosed the matter before her family members. She was medically examined and after investigation, charge-sheet was submitted in this matter.

5. It is submitted by the learned counsel for the appellant that the appellant is innocent and has been falsely implicated in this case. He has not committed the present offence. Alleged offences are not attracted against him. It is also submitted that the prosecution story is totally false and fabricated. Essential ingredients to constitute an offence under the SC/ST Act are not established in this matter. It is also submitted that the appellant and the prosecutrix had acquaintance and the prosecutrix also wanted to marry with him but her family members were not ready for this and for the said reason a false F.I.R. was lodged by the informant of this case whereas, as a matter of fact, no physical relation was made by the appellant with the victim of this case. It is also submitted that although in her statement under section 183 BNSS, the prosecutrix has made allegations against the appellant but it appears that she was a consenting party so far as the fact of going with the appellant on his motorcycle is concerned but they never visited any hotel and no sexual offence was committed. It is also submitted that during investigation the I.O. of this case has recorded the statement of the Hotel Manager, who has denied the specific words that the victim and the appellant were not provided any room in his Hotel because they were not having proper identification proof. It is also submitted that the medical evidence does not corroborate the prosecution version. Victim was a major lady. It is also submitted that the doctor, who medically examined the victim, has made a specific statement that from the external medical examination, no visible injury was seen all over the body of the victim. It is also submitted that although the charge-sheet has been submitted in this matter but no F.S.L. Report has been collected by the I.O. so far. It is also submitted that the bail application of the appellant has been rejected in an illegal manner by the Special Judge (S.C./S.T. Act), Ghaziabad. It is further submitted that the Court concerned while passing the impugned order did not take into account the facts and evidence available on record in right perspective and erred in passing the same. It is lastly submitted that the impugned order rejecting the bail application of the appellant suffers from infirmity and illegality warranting interference by this Court. Appellant is languishing in jail since 23.11.2024 having no criminal antecedents to his credit.

6. On the other hand, learned A.G.A. opposed the appeal and it has been submitted that in her statement under section 183 BNSS recorded by the Magistrate, the victim of this case has named the present appellant for committing rape with her in the room of the hotel. There is no possibility of false implication of the accused appellant.

7. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the impugned order carefully.

8. Having regard to the facts and circumstances of the case and keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, the medical report relating to the victim and also considering the fact that no noise was made by the victim when she was taken to the hotel by the appellant nor she made any complaint to the Manager of the Hotel or any other person regarding the conduct of the appellant before committing the rape, the Court is of the opinion that the appellant has made out a case for bail. The Court concerned erred in rejecting the bail application of the appellant. The impugned order suffers from infirmity and illegality and the same is liable to be set-aside and the appeal is liable to be allowed.

9. Accordingly, the appeal is allowed and the impugned order rejecting the bail application of the appellant is set-aside.

10. Let the appellant Shahid involved in case crime no.615 of 2024 under Sections 64, 351 (2) B.N.S. and Section 3 (2) 5 S.C./S.T. Act, Police Station Garhmukteshwar, District Hapur be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified. (i) The appellant will not tamper with the evidence during the trial. (ii) The appellant will not pressurize/ intimidate the prosecution witness. (iii) The appellant will appear before the trial court on the date fixed, unless personal presence is exempted. (iv) The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. (v) The appellant 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 him from disclosing such facts to the Court or to any police officer or tamper with the evidence.

11. In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court. Order Date :- 27.5.2025 / ss

Hon'ble Nalin Kumar Srivastava,J.

1. Despite service of notice, none is present for the informant / opposite party no.2.

2. This criminal appeal under Section 14-A (2) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred by the appellant - Shahid with the prayer to allow the appeal, set aside the bail rejection order dated 7.1.2025 passed by Addl. District & Sessions Judge / Special Judge (SC/ST Act), Hapur and release the appellant on bail in case crime no.615 of 2024 under Sections 64, 351 (2) B.N.S. and Section 3 (2) 5 S.C./S.T. Act, Police Station Garhmukteshwar, District Hapur.

3. Heard learned counsel for the appellant, learned A.G.A. for the State and perused the entire record.

4. Prosecution story, as unfolded in the F.I.R., is that on 18.11.2024, when the sister of the informant, aged 18 years, had gone to her school, she was enticed away by the appellant Shahid, who took her by motorcycle to OYO Hotel and in the room of the Hotel rape was committed with the victim by said Shahid and he also threatened her not to disclose it to anyone. However, F.I.R. of this case was lodged on 22.11.2024 when the victim disclosed the matter before her family members. She was medically examined and after investigation, charge-sheet was submitted in this matter.

5. It is submitted by the learned counsel for the appellant that the appellant is innocent and has been falsely implicated in this case. He has not committed the present offence. Alleged offences are not attracted against him. It is also submitted that the prosecution story is totally false and fabricated. Essential ingredients to constitute an offence under the SC/ST Act are not established in this matter. It is also submitted that the appellant and the prosecutrix had acquaintance and the prosecutrix also wanted to marry with him but her family members were not ready for this and for the said reason a false F.I.R. was lodged by the informant of this case whereas, as a matter of fact, no physical relation was made by the appellant with the victim of this case. It is also submitted that although in her statement under section 183 BNSS, the prosecutrix has made allegations against the appellant but it appears that she was a consenting party so far as the fact of going with the appellant on his motorcycle is concerned but they never visited any hotel and no sexual offence was committed. It is also submitted that during investigation the I.O. of this case has recorded the statement of the Hotel Manager, who has denied the specific words that the victim and the appellant were not provided any room in his Hotel because they were not having proper identification proof. It is also submitted that the medical evidence does not corroborate the prosecution version. Victim was a major lady. It is also submitted that the doctor, who medically examined the victim, has made a specific statement that from the external medical examination, no visible injury was seen all over the body of the victim. It is also submitted that although the charge-sheet has been submitted in this matter but no F.S.L. Report has been collected by the I.O. so far. It is also submitted that the bail application of the appellant has been rejected in an illegal manner by the Special Judge (S.C./S.T. Act), Ghaziabad. It is further submitted that the Court concerned while passing the impugned order did not take into account the facts and evidence available on record in right perspective and erred in passing the same. It is lastly submitted that the impugned order rejecting the bail application of the appellant suffers from infirmity and illegality warranting interference by this Court. Appellant is languishing in jail since 23.11.2024 having no criminal antecedents to his credit.

6. On the other hand, learned A.G.A. opposed the appeal and it has been submitted that in her statement under section 183 BNSS recorded by the Magistrate, the victim of this case has named the present appellant for committing rape with her in the room of the hotel. There is no possibility of false implication of the accused appellant.

7. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the impugned order carefully.

8. Having regard to the facts and circumstances of the case and keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, the medical report relating to the victim and also considering the fact that no noise was made by the victim when she was taken to the hotel by the appellant nor she made any complaint to the Manager of the Hotel or any other person regarding the conduct of the appellant before committing the rape, the Court is of the opinion that the appellant has made out a case for bail. The Court concerned erred in rejecting the bail application of the appellant. The impugned order suffers from infirmity and illegality and the same is liable to be set-aside and the appeal is liable to be allowed.

9. Accordingly, the appeal is allowed and the impugned order rejecting the bail application of the appellant is set-aside.

10. Let the appellant Shahid involved in case crime no.615 of 2024 under Sections 64, 351 (2) B.N.S. and Section 3 (2) 5 S.C./S.T. Act, Police Station Garhmukteshwar, District Hapur be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified. (i) The appellant will not tamper with the evidence during the trial. (ii) The appellant will not pressurize/ intimidate the prosecution witness. (iii) The appellant will appear before the trial court on the date fixed, unless personal presence is exempted. (iv) The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. (v) The appellant 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 him from disclosing such facts to the Court or to any police officer or tamper with the evidence.

11. In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court. Order Date :- 27.5.2025 / ss