High Court
Case Details
Court No. - 67 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 54357 of 2021 Applicant :- Saarif @ Sharif Opposite Party :- State of U.P. Counsel for Applicant :- Anupam Dubey,Shashi Kumar Mishra Counsel for Opposite Party :- G.A.,Afzal Ahmad Khan Durrani Hon'ble Sameer Jain,J.
Legal Reasoning
Heard Sri S.K. Mishra, learned counsel for the appellant; Sri Afzal Ahmad, learned counsel for the complainant; Sri S.K. Pandey, learned AGA for the State and perused the records of the case. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Saarif @ Sharif, seeking enlargement on bail during trial in connection with Case Crime No. 1633 of 2021, under Sections 376, 328 I.P.C., registered at P.S.-Sahibabad, District-Ghaziabad. The FIR of the present case was lodged by the victim herself on 6.8.2021, under Sections 328 & 376 IPC with the allegation that on 25.2.2021, applicant enticed her and took her in hotel where by administering some item in the drink, he committed rape with her and also threatened her that he had already made her video and he will viral the same and after that applicant several times committed rape with her. In her statement recorded under Section 161 Cr.P.C., she repeated the version of the FIR. But when her statement under Section 164 Cr.P.C. was recorded by Magistrate then she introduced two other persons alongwith the applicant and stated that applicant alongwith two others persons were committed rape with her. As per the radiological report, age of the victim is about 18 years. Learned counsel contended that the victim is a major girl and she herself is the informant of the case but inspite of that she lodged the FIR of the present case after six months of the alleged incident and from the perusal of the FIR and the statement recorded under Section 164 Cr.P.C., it is apparent that the victim is a consenting party and, therefore, no offence under Section 376 IPC is made out. He further contended that the victim made improvement in her statement recorded under Section 164 Cr.P.C. and introduced two more accused persons only to make the case more serious and this shows that she is not trustworthy. It has also been submitted that the applicant who is languishing in jail since 22.10.2021 having no criminal history should be released on bail. Per contra, learned counsel for the complainant and learned AGA for the State vehemently opposed the prayer for bail and further submitted that it is a case in which applicant alongwith two other persons committed rape with the victim and the present case is a gang rape and there is specific allegation that the applicant alongwith two other persons committed rape with the victim, therefore, the present bail application is liable to be dismissed. I have heard learned counsel for both the parties and perused the records of the case. The FIR of the present case was lodged on 6.8.2021 whereas the first incident mentioned in the FIR is on 25.2.2021. Thus, FIR was lodged after five and a half months and further in the FIR victim herself mentioned her age as 21 years and as per the radiological report, it appears that she is major and further the story narrated by the victim is not convincing and it appears that she is a consenting party and further she made a major improvement in her statement recorded under section 164 Cr.P.C. and introduced two more accused persons who according to her also committed rape upon her alongwith the applicant. Although there is allegation upon the applicant for making a video but neither there is any video on record nor any video was viraled by the applicant or anybody else. Considering the facts and circumstances of the case, I am of the view that the applicant may be released on bail. Therefore, without expressing any opinion on the merits of let the applicant-Saarif Alias Sharif, be the case, 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 she 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/endeavor and try to conclude the trial expeditiously after the release of the applicant. 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. The bail application is, accordingly, allowed. Order Date :- 25.3.2022 Ankita Digitally signed by ANKITA SRIVASTAVA Date: 2022.03.28 13:13:20 IST Reason: Location: High Court of Judicature at Allahabad