High Court
Case Details
Neutral Citation No. - 2023:AHC:167917 Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29596 of 2023 Applicant :- Azhar Khan Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Bishram Tiwari Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J. 1. List revised
Legal Reasoning
2. Notice was issued to the first informant vide order dated 07.07.2023. As per the office report dated 18.08.2023, a report dated 07.08.2023 of C.J.M. concerned has been received stating therein that notice has been served on the wife of the first informant. 3. The perusal of the said report shows that notice has been served on the wife on the first informant. 4. No one appears on behalf of the first informant even when the matter has been taken up in the revised list..
Legal Reasoning
5. Heard Sri Bishram Tiwari, learned counsel for the applicant, Sri Ram Prakash Shukla, learned counsel for the State and perused the material on record. 6. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Azhar Khan, seeking enlargement on bail during trial in connection with Case Crime No. 927 of 2022, under Sections 376, 506 I.P.C. and Section 3(2) (5) SC/ST Act and 5-J(2)/6 POCSO Act, registered at Police Station Kotwali Deoria, District Deoria. 7. The FIR of the matter was lodged on 23.12.2022 by Guddu Prasad against the applicant and two other persons alleging therein that his daughter is working in Sai Ready-made Vastralaya, Ramleela Maidan, Deoria. Azhar Khan the applicant knew his daughter. He tried to forcibly talk to her and used to follow her and on 15.12.2022 at about 08:00 pm when his daughter went to her quarter the applicant followed her. On a false pretext to marry her, he committed rape upon her. He made a video of it and then threatened her and established physical relationship. 8. Learned counsel for the applicant argued that although the first informant and victim have reiterated the version as given in the FIR in their statements recorded under Section 161 Cr.P.C. but subsequently in the statement of the victim recorded under Section 164 Cr.P.C. she states that she loves the applicant since last one and half years. He has not done any wrong with her. On the pressure of her family members, she stated that he raped her. It is further submitted that there was some photograph clicked by the applicant and by mistake was launched on the status of a portal after which persons came to know of the relationship. It is argued that as such the implication of the applicant in the present case is false. It is argued that there are sharp contradictions in the statement of the victim recorded under Section 161 Cr.P.C. and 164 Cr.P.C. In so far as the statement of the victim recorded under Section 164 Cr.P.C. is concerned, she has not stated to have committed rape upon her and as such there no offence whatsoever is made out against the applicant. It is argued that the Chief Medical Officer concerned opined the age of the victim to be about 18 years and as such she is a major. The applicant was involved in one case which is being under Section 366A IPC in which he has been granted bail vide order dated 27.09.2019 passed by the trial court. Copy of the said order has been annexed as annexure 6 to the affidavit. The applicant is in jail since 24.12.2022. 9. Per contra, learned counsel for the State opposed the prayer for bail. 10. After having heard learned counsels for the parties and perusing the records, it is evident that as per certificate of the CMO concerned, the victim is a major girl. There are sharp contradictions in the statement recorded under Section 161 Cr.P.C. and 164 Cr.P.C. of the victim. In her statement under Section 164 Cr.P.C. she does not state of the applicant committing any offnece with her. 11. 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. 12. Let the applicant Azhar Khan, 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. 13. 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. 14. The bail application is allowed. Order Date :- 21.8.2023 M. ARIF (Samit Gopal, J.) Digitally signed by :- MOHAMMAD ARIF High Court of Judicature at Allahabad