Salamuddin vs State Of U.P. And Anr.
2021 Latest Caselaw 10827 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 16
 
Case :- BAIL No. - 9034 of 2020
 

 
Applicant :- Salamuddin
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Applicant :- Ram Pheran Dwivedi,Seema Dwivedi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Saurabh Lavania,J.

Heard learned counsel for the applicant as well as learned Additional Government Advocate for the State of U.P. and perused the record.

The present bail application has been filed by the applicant seeking bail in Case Crime No. 0311 of 2020, under Sections-363, 366, 376 I.P.C. & 3/4 POCSO Act, Police Station-Hujoorpur, District Bahraich.

Learned counsel for the applicant while pressing the present bail application submitted that at the behest of Smt. Sumitra Devi Singh the applicant has been implicated in the present case through informant namely Suraj, who is the servant of Smt. Sumitra Devi Singh. It is submitted that there was a dispute regarding a piece of land between Sattar Ali Darji "Nana" of the applicant and Smt. Sumitra Devi Singh. The owner of the land was "Nana" (Maternal Grand Father) of the applicant. Smt. Sumitra Devi Singh is one of the auction purchasers of the said land. It is stated that the process of auction was challenged before the Writ Court by means of Writ Petition No.611 (M/S) of 2006 (Sattar Ali Darji (Dastkar) @ Anr. vs. Assistant Collector Ist Class, Bahraich & 5 Ors.), which was allowed vide judgment and order dated 10.09.2018.

Being aggrieved by the judgment and order dated 10.09.2018, Smt. Sumitra Devi Singh filed Special Appeal No.526 of 2018, which was dismissed vide judgment and order dated 30.10.2019. Being aggrieved/ annoyed and just to take revenge with the applicant, who is the grand son and sole legal heir of Sattar Ali Darji (Dastkar), the F.I.R. in issue was lodged on 24.07.2020 alleging therein that the applicant enticed away minor daughter of the informant. This F.I.R. was lodged under Section 363 I.P.C. After recording the statement under Section 161 Cr.P.C. other Sections 366, 376 & 3/4 POCSO Act, were introduced against the applicant and thereafter, the statement of victim was recorded under Section 164 Cr.P.C. wherein more or less the victim reiterated her stand which was made by her under Section 161 Cr.P.C., however, the case of the prosecution does not find any support from the report of medical examination of the victim. In this regard, he submitted that alleged incident is of 23.07.2020 and the F.I.R. was lodged on 24.07.2020 and the victim was medically examined on 25.07.2020. However, neither external nor internal injury was found by the Doctor concerned. As per opinion of the Doctor, there is no sign of use of force as also sexual assault. He further submitted that two slides of vaginal smear were prepared for pathological examination, however, till date the report has not been obtained by the prosecution. In these facts and circumstances of the case, the benefit should be given to the applicant at this stage of bail. Prayer is to allow the present bail application and released the applicant on bail.

Learned A.G.A., on query being put, on the basis of material available on record, could not dispute the fact as asserted by the learned counsel for applicant including on the issue of availability of F.S.L. report.

Learned counsel for applicant further submitted that as per medical examination the victim is major and at the time of alleged incident, she was about 18 years old.

Learned A.G.A. has, however, opposed the prayer for grant of bail. She submitted that victim has supported the story of prosecution and there are specific allegations against the applicant. In this regard, she referred the statements of the victim recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. However, on the basis of averments made in the counter affidavit, she could not dispute the specific submissions made by the learned counsel for applicant based on para 5 of the affidavit filed in support of bail application as per which the F.I.R. in issue has been lodged by the informant at the behest of Smt. Sumitra Devi Singh. She also could not dispute the submission of learned counsel for applicant based on medical opinion.

Considering the facts and circumstances of the case, perusing the record and also considering the nature of allegations, arguments advanced by the learned counsel for the parties and keeping in mind the specific averments made in para 5 of the affidavit filed in support of bail application as also medical opinion, without expressing any opinion on the merit of the case, I find it to be a fit case for granting bail.

Let applicant-Salamuddin be released on bail in aforesaid Case Crime Number on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the Magistrate/Court concerned, subject to following conditions :-

(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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 his under Section 229-A of the Indian Penal Code.

(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. is issued and the 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 of the Indian Penal Code.

(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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.

In case of breach of any of the above conditions, the Court below shall be at liberty to cancel the bail and proceed against the applicant in accordance with law.

This order shall not influence the trial Court for proceeding with the trial.

The application stands disposed of.

The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by him alongwith a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked before the concerned Court/Authority/Official.

The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 25.8.2021/Vinay/-