HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. A.F.R. Court No. - 47 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39259 of 2014 Applicant :- Nadeem Opposite Party :- State Of U.P. Counsel for Applicant :- Mohd. Aslam Ansari,Ronak Chaturvedi Counsel for Opposite Party :- Govt. Advocate Hon'ble Karuna Nand Bajpayee,J.
Second supplementary affidavit filed today is taken on record.
This application has been filed seeking the release of the applicant on bail in Case Crime No.223 of 2014, u/s 376 (D) I.P.C. and 5A/6 Protection of Children From Sexual Offences Act, Police Station Gangoh, District-Saharanpur.
Heard learned counsel for the applicant and learned A.G.A.
Perused the record.
Submission of counsel for the applicant is that co-accused Vivek Kumar and Subhash Chandra have already been released on bail and the case of the applicant is of parity and therefore, he should be also released on bail. It is further submitted that the medical evidence does not corroborate the allegation of rape. The applicant is languishing in jail since 10.5.2014 and therefore, on the basis of detention also he should be released on bail.
Learned A.G.A. has opposed the prayer for bail and has drawn the attention of the court to the bail orders of co-accused which have been procured by making false statement in the court. It is apparent on the basis of record that an attempt to mislead the court was made and wrong facts were stated at the time of hearing. It was submitted before the court at the time of hearing of the bail of co-accused Vivek Kumar that when the statement of victim was recorded under Section 164 Cr.P.C. there was no allegation of rape made against him and the same had been assigned to co-accused Nadeem and Zeeshan. Learned A.G.A. has also drawn the attention of the court to the statement of victim recorded under Section 164 Cr.P.C. in which with regard to co-accused Vivek Kumar and Subhash Chandra who are police personnels, against both of them the allegations of rape is very much there. The two police personnels who raped the victim were nominated in the F.I.R. Further submission is that as the impression was given to the court that there was no allegation of rape against the co-accused Vivek Kumar, therefore, now it cannot be said that the advantage of parity should be granted to the present applicant and the case of the applicant has got to be judged on the basis of merits of the case. It is further pointed out that another co-accused Subhash Chandra was granted bail on the basis of his parity with co-accused Vivek Kumar and while obtaining bail of co-accused Subhash aforesaid falsity and fallacy of fact was never pointed out before the court and it was never brought to the notice of the court that the bail of Vivek Kumar itself had been procured by making a gross mis-statement of fact. Further submission of learned A.G.A is that according to the statement of victim given before the magistrate the applicant had taken the victim along with him and thereafter called up the police personnels who took the victim along with them and committed rape upon her one by one. Thereafter further details of the incident were given by the victim and it was stated that subsequently when she came back from the clutches of co-accused, the applicant took her to his room and also committed rape upon her repeatedly. It also transpires from the statement of the girl that the applicant Nadeem has also accepted the money for managing to handover the victim to the police personal. It was further pointed out that the age of the girl is about 15-16 years.
Looking to the nature of offence, its gravity and the evidence in support of it and the overall circumstances of this case, this Court is of the view that the applicant has not made out a case for bail. Therefore, the prayer for bail of the applicant is rejected.
However, it is expected that the court shall make necessary endeavour to expedite the trial and conclude it at the earliest and may also resort to coercive measures permissible under law to procure the attendance of the witnesses.
It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.
Order Date :- 15.9.2015 Rkb