Allahabad High Court
Afzal vs State Of U.P. on 25 April, 2022
Bench: Sanjay Kumar Pachori
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 72
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1113 of 2022
Applicant :- Afzal
Opposite Party :- State of U.P.
Counsel for Applicant :- Sunil Vashisth
Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Pachori,J.
Heard Sri Sunil Vashisth, learned counsel for the applicant and learned A.G.A. for the State and perused the material on record.
The present bail application has been filed on behalf of applicant Afzal under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 314 of 2021 for offence punishable under Sections 363, 376 of the Indian Penal Code, registered at Police Station- Jani, District- Meerut, during pendency of the trial, after rejecting the bail application of the applicant by Specail Judge (S.C./S.T.) Act, Meerut vide order dated 23.12.2021.
Brief facts of the present case are that the first information report dated 26.10.2021 has been lodged against the applicant by the father of the victim stating therein that on 23.10.2021 at about 12:00 (midnight) applicant enticed away his minor daughter, who is aged about 16 years. He searched about his daughter everywhere but he could not trace out and he informed the police by dialing 112 No., his neighbours have also seen the applicant at the time of committing the alleged incident.
After lodging the first information report, the statement of the victim was recorded under Section 161 of Cr.P.C. on 28.10.2022; medical examination of the victim was also conducted on 28.10.2022; the statement of the victim was recorded under Section 164 of Cr.P.C. on 29.10.2022. After recording the statement of the other prosecution witnesses, the Investigating Officer has submitted charge sheet against the applicant on 26.02.2022. The applicant was arrested on 30.10.2021.
Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that as per High School certificate, which has been collected during the course of investigation, applicant was major at the time of the incident and her age was 19 years. It is further submitted that applicant is neighbour of the first informant. It is further submitted that there is a material contradiction with regard to recovery of the victim. The recovery memo is prepared on 28.10.2021. As per statement of the victim recorded under Section 164 Cr.P.C. in which she has stated that she was recovered from the house of the applicant's aunt where she was stayed for about 2 days. It is further submitted that applicant entice away the victim and she travelled with the applicant more than 60 kms. from the place of the incident.
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 F.I.R. 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) As per the school certificate, the age of the victim was 19 years:
(b) There is a material contradiction with regard to fact of the recovery of the victim, it would not be appropriate to discuss the same at this stage;
(c) The victim has travelled with the applicant from place of incident to the house of the applicant's aunt in the midnight on 23.10.2021;
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, Afzal 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/endeavor and try to conclude the trial expeditiously in accordance with law after the release of the applicant, 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 along-with 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 :- 25.4.2022
Ishan
