Naresh Nassi Nare v. State of U.P. and another)

2. Heard Sri Mohammad Zakir, learned counsel for the applicant, Sri Ajay Singh, learned AGA-I for the State and perused the material on record.

3. Sri Dhirendra Kumar Agrahari, learned counsel for the first informant is not present despite the matter being taken up in the revised list.

4. This second bail application under Section 439 Cr.P.C. has been filed by the applicant Naresh @ Nassi @ Nare, seeking enlargement on bail during trial in connection with Case Crime No. 92 of 2019, under Sections 364, 323, 376D, 394, 354 I.P.C. and Section 6 POCSO Act, registered at Police Station Jahangirabad, District Bulandshahr.

5. The first bail application of the applicant was dismissed for want of prosecution by this Court vide order dated 13.07.2023 passed in Crl. Misc. Bail Application No. 36031 of 2019 (Naresh @ Nassi @ Nare Vs. State of U.P. and another).

6. The FIR of the matter was lodged on 11.03.2019 by Harendra Sharma against Sajid, Vishal and Prashant alleging therein that his 13 years old daughter was returning from marriage on 10.03.2019 with Jitendra wherein in the night at about 11:30- 12:30 pm Sajid hit the motorcycle with his car and kidnapped his daughter. Vishal and Prashant are also involved to incident with Sajid. The accused persons have assaulted Jitendra. Report be lodged and action be taken.

7. Learned counsel for the applicant submitted that the applicant has been falsely implicated in the present case. It is submitted that the applicant is not named in the FIR. It is submitted that subsequently the name of the applicant has surfaced in the statement of the victim recorded under Section 161 Cr.P.C. wherein she states that co-accused Chintu committed rape upon her and he was calling other persons present by the name of Shaukendra and Narsi. It is submitted that thus the applicant has been involved in the present matter. It is further submitted that in her statement under Section 164 Cr.P.C. reiterates the version given by her in her statement under Section 161 Cr.P.C. It is further stated by her that the other two persons in the vehicle had enraged her modesty. It is submitted that the statements thus of the victim is not consistent. It is further submitted while placing supplementary affidavit dated 03.12.2024 that the applicant has been falsely implicated in 13 cases apart from the present case and in the other cases he is on bail. It is further submitted that co-accused Jitendra @ Chintu has been granted bail by a co-ordinate Bench of this Court vide order dated 12.04.2024 passed in Crl. Misc. Bail Application No. 22727 of 2023 (Jitendra @ Chintu Vs. State of U.P. and another), copy of the order is annexed as annexure S.A.2 to the same supplementary affidavit. It is submitted that the applicant be thus released on bail. The applicant is in jail since 10.04.2019.

8. Per contra, learned counsel for the State opposed the prayer for bail and submitted that the implication of the applicant is on the basis of the statement of the victim recorded during investigation. It is further submitted that the applicant is involved in the matter and has misused the liberty of granting bail as the applicant is involved in other cases.

9. After having heard learned counsels for the parties and perusing the records, it is evident that this is the second bail application. The first bail application of the applicant was dismissed for want of prosecution by this Court vide order dated 13.07.2023. The applicant is not named in the FIR. The accused named in the FIR has been exonerated and different persons have been made as an accused. The implication of the applicant is on the basis of version given by the victim during investigation. The main role of rape is assigned to co-accused Jitendra @ Chintu who has been granted bail.

10. 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.

11. Let the applicant Naresh @ Nassi @ Nare, 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.

12. 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.

13. The bail application is allowed.

14. Pending application(s), if any, shall stand disposed of. Order Date :- 20.5.2025/M. ARIF (Samit Gopal, J.) MOHAMMAD ARIF High Court of Judicature at Allahabad

2. Heard Sri Mohammad Zakir, learned counsel for the applicant, Sri Ajay Singh, learned AGA-I for the State and perused the material on record.

3. Sri Dhirendra Kumar Agrahari, learned counsel for the first informant is not present despite the matter being taken up in the revised list.

4. This second bail application under Section 439 Cr.P.C. has been filed by the applicant Naresh @ Nassi @ Nare, seeking enlargement on bail during trial in connection with Case Crime No. 92 of 2019, under Sections 364, 323, 376D, 394, 354 I.P.C. and Section 6 POCSO Act, registered at Police Station Jahangirabad, District Bulandshahr.

5. The first bail application of the applicant was dismissed for want of prosecution by this Court vide order dated 13.07.2023 passed in Crl. Misc. Bail Application No. 36031 of 2019 (Naresh @ Nassi @ Nare Vs. State of U.P. and another).

6. The FIR of the matter was lodged on 11.03.2019 by Harendra Sharma against Sajid, Vishal and Prashant alleging therein that his 13 years old daughter was returning from marriage on 10.03.2019 with Jitendra wherein in the night at about 11:30- 12:30 pm Sajid hit the motorcycle with his car and kidnapped his daughter. Vishal and Prashant are also involved to incident with Sajid. The accused persons have assaulted Jitendra. Report be lodged and action be taken.

7. Learned counsel for the applicant submitted that the applicant has been falsely implicated in the present case. It is submitted that the applicant is not named in the FIR. It is submitted that subsequently the name of the applicant has surfaced in the statement of the victim recorded under Section 161 Cr.P.C. wherein she states that co-accused Chintu committed rape upon her and he was calling other persons present by the name of Shaukendra and Narsi. It is submitted that thus the applicant has been involved in the present matter. It is further submitted that in her statement under Section 164 Cr.P.C. reiterates the version given by her in her statement under Section 161 Cr.P.C. It is further stated by her that the other two persons in the vehicle had enraged her modesty. It is submitted that the statements thus of the victim is not consistent. It is further submitted while placing supplementary affidavit dated 03.12.2024 that the applicant has been falsely implicated in 13 cases apart from the present case and in the other cases he is on bail. It is further submitted that co-accused Jitendra @ Chintu has been granted bail by a co-ordinate Bench of this Court vide order dated 12.04.2024 passed in Crl. Misc. Bail Application No. 22727 of 2023 (Jitendra @ Chintu Vs. State of U.P. and another), copy of the order is annexed as annexure S.A.2 to the same supplementary affidavit. It is submitted that the applicant be thus released on bail. The applicant is in jail since 10.04.2019.

8. Per contra, learned counsel for the State opposed the prayer for bail and submitted that the implication of the applicant is on the basis of the statement of the victim recorded during investigation. It is further submitted that the applicant is involved in the matter and has misused the liberty of granting bail as the applicant is involved in other cases.

9. After having heard learned counsels for the parties and perusing the records, it is evident that this is the second bail application. The first bail application of the applicant was dismissed for want of prosecution by this Court vide order dated 13.07.2023. The applicant is not named in the FIR. The accused named in the FIR has been exonerated and different persons have been made as an accused. The implication of the applicant is on the basis of version given by the victim during investigation. The main role of rape is assigned to co-accused Jitendra @ Chintu who has been granted bail.

10. 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.

11. Let the applicant Naresh @ Nassi @ Nare, 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.

12. 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.

13. The bail application is allowed.

14. Pending application(s), if any, shall stand disposed of. Order Date :- 20.5.2025/M. ARIF (Samit Gopal, J.) MOHAMMAD ARIF High Court of Judicature at Allahabad