Aslam vs State Of U.P. And 3 Others
2022 Latest Caselaw 1187 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8473 of 2022
 

 
Applicant :- Aslam
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Vishnu Kumar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Arvind Singh Patel, Advocate holding brief of Shri Vishnu Kumar, learned counsel for the applicant, learned A.G.A. for the State and perused the material on record. Despite service of notice upon first informant, none appears for the first informant.

The present bail application has been filed on behalf of applicant Aslam under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 471 of 2021 for offence punishable under Sections 376, 511, 452, 354, 323, 504, 506 of the Indian Penal Code and Section 7/8 of Protection of Children from Sexual Offences Act, 2012 registered at Police Station Kundarki, District Moradabad, during pendency of the trial, after rejecting the bail application of the applicant by Additional Sessions Judge/ Special Judge (POCSO Act) Court No. 1, Moradabad vide order dated 31.1.2022.

Brief facts of the case are that the First Information Report dated 12.11.2021 has been lodged by the father of the victim against the applicant stating that on 2.11.2021 when the first informant along with his wife and children went to harvest the paddy in the forest on payment of daily wages, his minor daughter, aged about 15 years was alone at the house. At about 10.00 a.m. applicant reached at the house of the first informant. He forcibly dragged her daughter into a room, molested her and attempted to commit rape with her. On crying, the applicant has committed marpeet with his daughter, hurled filthy abuses and threatened with dire consequences, if she tells someone about the incident and fled away from the house. In the evening when the first informant returned to his home, then his daughter told the whole incident. On 2.11.2021 he reached police station along with his daughter, but the first information report has not been lodged.

After lodging the first information report, statement of the victim under Section 161, Cr.P.C. was recorded on 14.11.2021. Statement of the victim under Section 164, Cr.P.C. was recorded on 17.11.2021. After recording the statement of the first informant and other prosecution witnesses, charge sheet has been submitted on 7.12.2021. The applicant was arrested on 6.12.2021.

Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive as well as enmity of matrimonial dispute. First information report has been lodged after ten days of the incident. It is further submitted that the victim was real sister of Salman, whose marriage was solemnized with the sister of the applicant on 23.8.2018. Sister of the applicant has lodged first information report dated 16.11.2021 against the victim and her family members under Sections 498-A, 323, 506, IPC, Section 3/4 Dowry Prohibition Act and Section 3/4 of Muslim Women (Protection of Rights on Marriage) Act, 2019. It is further submitted that on 30.10.2021 at 8.00 p.m. victim and her family members assaulted sister of the applicant with lathi danda and thrown her out of the matrimonial house due to demand of motorcycle. She sustained injuries in the incident. It is further submitted that there is material contradiction in the statements of the victim recorded under Sections 161 & 164, Cr.P.C. It is further submitted that as per allegation of the prosecution case, medical examination of the victim was not conducted. It is further submitted that except the statements of the victim, there is no other evidence against the applicant.

He has next argued that the applicant has no previous criminal history and if the applicant is released on bail, he shall not misuse the liberty of bail.

Per contra, learned A.G.A. has supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicant and submits that the allegations involved are very serious in nature and the delay in lodging the FIR cannot be said to be fatal to the case at this juncture while considering the application of bail. But he could not point out any material to the contrary. He further submits that in case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.

After considering the facts of the present case it prima facie appears that;

(a) Sister of the applicant has lodged an FIR about the incident dated 30.10.2021 under Sections 498-A, 323, 506, IPC, Section 3/4 Dowry Prohibition Act and Section 3/4 of Muslim Women (Protection of Rights on Marriage) Act, 2019 against the victim and other family members of the victim;

(b) There is material contradiction/improvement in the statements of the victim recorded under Section 161 &164, Cr.P.C. It would not be appropriate to discuss the same at this stage;

(c) First information report has been lodged after ten days of the incident;

(d) There is no medical examination of the victim.

It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.

Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.

Let applicant, Aslam be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

(i) The applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.

(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.

(iii) 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 of Cr.P.C.

(iv) 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 the trial court.

(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.

(vi) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that 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 in accordance with law.

The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the applicant, keeping in view the law laid down by the Supreme Court in the case of Alakh Alok Srivastava v. Union of India & Anr., AIR 2018 SC 2440, if there is no other legal impediment.

It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.

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

The concerned Court/Authority/Official shall verify the authenticity of such 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 :- 12.4.2022

T. Sinha