High Court
Case Details
Court No. - 67 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41800 of 2022 Applicant :- Noman Khan Opposite Party :- State Of U.P And 3 Others Counsel for Applicant :- Rajesh Pratap Singh Counsel for Opposite Party :- G.A.,Shamasul Eslam Hon'ble Rahul Chaturvedi,J.
Legal Reasoning
Heard Shri O.P. Singh, learned Senior Advocate assisted by Shri Rajesh Pratap Singh, learned counsel for the applicant and Shri Shamasul Eslam, learned counsel for the complainant and learned A.G.A. Perused the record. By means of the present bail application the applicant is seeking his bail in connection with Case Crime No.472 of 2022, u/s 376(2)(n), 506, 120B I.P.C. and Section 5/6 of POCSO Act, Police Station- Mohammdabad Gohna, District Mau. The applicant is in jail since 16.8.2022. Contention raised by the learned counsel for the applicant is that the age of victim girl at the time of lodging of the F.I.R. was 20 years and 5 months as per her High school certificate. The F.I.R. was lodged by the victim girl herself on 15.8.2022 naming seven persons as accused including the applicant Noman Khan u/s 376(2) (n), 506, 120-B I.P.C. and 5/6 of POCSO Act, with the allegation that the she is aged about 15 years and the applicant on the false pretext of marrying her has established physical relationship with her a number of times. In her 161 statement the girl states that from last five years she is in relationship with the applicant and on the false pretext of marriage the applicant has ravished her time and again but subsequently the applicant has wriggle out of his promise of marriage. She also went to Azamgarh, Jaunpur and Agra with the applicant on her own sweet will and wishes. She understands the far-reaching repercussions of pre-marital sex with unknown person. It is contended by learned counsel for the applicant that the conduct of the victim girl indicates that her consent was not obtained under any threat or fear as contemplated u/s 90 of I.P.C. Not only this the girl on her own sweet will has visited to the hotel Maharaja at Jaunpur on 19.5.20222, 22.6.2022 an 24.7.2022 and remained with the applicant as his wife. This fact has been confirmed by the Manager of Hotel Maharaja, Jaunpur in his statement. Contention of the applicant is that the victim has lastly visited to hotel with the applicant on 24.7.2022 and the F.I.R. is being lodged in the month of August, 2022. This fact itself is self explanatory and needs no explanation. The way and manner in which the victim girl has spent their quality time with the applicant out of her own sweet will, indicates that she was in consensual relationship with the applicant. In her 164 statement the girl has tried to develop the prosecution story by mentioning that the applicant has videgraphed her obscene videos and threatened to make them viral. She also states that she was got aborted by the applicant, but fact remains that no evidence in this regard has been collected during investigation by the police and this indicates that the girl has subsequently in her 164 statement developed an imaginary story in order to falsely implicate the applicant. Learned counsel for the applicant has relied upon three judgements of Hon'ble Apex Court in the case of Maheshwar Tigga Vs. State of Jharkhand in Crl. Appeal No. 635 of 2020 decided on 28.09.2020, Dhruvaram Murlidhar Sonar Vs. The State of Maharashtra and others reported in AIR 2019 SC 327 and Pramod Suryabhan Pawar Vs. State of Maharashtra reported in (2019) 9 SCC 608 to buttress his contention. Per contra learned counsel for the informant opposed the prayer for bail but could not dispute the above facts. Strange enough, he requested to give a direction to the the applicant to marry with the victim girl. I am afraid of to accede the aforesaid request of learned counsel for the informant, therefore, no such direction is being given. Taking into account the totality of circumstances, the age of the girl being major, her shifting stand and her conduct which indicated that she remained with the applicant various places and established physical relationship on her own will and also keeping in view the nature of the offence, evidence on record regarding complicity of the accused, period of detention undergone by him, unlikelihood of early conclusion of trial and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed. Let the applicant Noman Khan, who is involved in aforementioned case crime 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 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. (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 UNDER SECTION 229-A IPC. (iii) 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 IPC. (iv) 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. (v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses. Order Date :- 5.12.2022 M. Kumar Digitally signed by MANISH KUMAR Date: 2022.12.06 14:30:15 IST Reason: Location: High Court of Judicature at Allahabad