High Court
Case Details
Neutral Citation No. - 2023:AHC:232477 Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 27896 of 2023 Applicant :- Rashid Opposite Party :- State of U.P. Counsel for Applicant :- A.Z.Khan Counsel for Opposite Party :- G.A.,Shamsuddin Ahmad Hon'ble Samit Gopal,J. 1. List revised.
Legal Reasoning
2. Heard Sri A.Z. Khan, learned counsel for the applicant, Sri Shamsuddin Ahmad, learned counsel for the first informant, Sri Bade Lal Bind, learned counsel for the State and perused the material on record. 3. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant-Rashid, seeking enlargement on bail during trial in connection with Case Crime No.83 of 2023, under Sections 376, 120-B IPC, registered at Police Station Kotwali Dehat, District Saharanpur. 4. The FIR of the present case was lodged on 14.3.2023 by the victim against the applicant, Israr and Smt. Shahbeen alleging therein that her mother Nasreen had died around 12 years ago. Her father Israr and her step mother Shahbeen who is a lady of bad character, tried to disturb her married life and the applicant committed rape upon her twice before her marriage. After marriage when she was in her maternal house, she was called by accused Israr where the applicant committed rape upon her. The other two co-accused persons used to take money from the applicant. 5. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that FIR has been lodged after an unexplained delay. In so far as the first incident of rape is concerned, the date and time of the same is missing. Even as per the prosecution version the last incident of rape was committed by the applicant on 8.1.2023 and even after the same, the present FIR has been lodged after about two months and five days of the same. The delay in lodging the FIR is unexplained. It is argued that FIR has been lodged just in order to falsely implicate the applicant, Israr, the father of the victim and Smt. Shahbeen, her step mother for ulterior motive. It is argued that co-accused Israr and Smt. Shabeen Begum have been granted bail by coordinate Benches of this Court vide orders dated 12.5.2023 and 16.6.2023 passed in Criminal Misc. Bail Application Nos.21414 of 2023 and 25092 of 2023, copies of the same produced by learned counsel for the applicant are taken on record. It has also been pointed out that the applicant is not having any criminal history as stated in para 18 of the affidavit. The applicant is in jail since 19.3.2023. 6. Per contra learned counsel for the first informant and learned counsel for the State opposed the prayer for bail and argued that the applicant is named in the FIR. There is an allegation against him of committing rape upon the victim thrice. So far as other co- accused persons who have been granted bail are concerned, their roles are of facilitating the applicant in committing rape and also standing as guard while he committed rape. The case of the applicant is distinguishable with that of other co-accused persons, as such the prayer for bail be rejected. 7. After hearing the counsel for the parties and perusing the record, it is evident that FIR has been lodged after an unexplained delay. The victim is a married woman. Co-accused persons have been granted bail. 8. 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. 9. Let the applicant-Rashid, 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. 10. 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. 11. The bail application is allowed. (Samit Gopal, J.) Order Date :- 7.12.2023 Gaurav Kuls Digitally signed by :- GAURAV KULSHRESTHA High Court of Judicature at Allahabad