Zishan vs State Of Up.
2022 Latest Caselaw 413 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4558 of 2022
 
Applicant :- Zishan
 
Opposite Party :- State Of Up.
 
Counsel for Applicant :- Ajay Kumar Mishra,Amit Daga
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Sri Amit Daga, 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 Zishan under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 496 of 2020, for offence punishable under Sections 376, 323, 406 & 506 of the Indian Penal Code, registered at Police Station- Hasanpur District- Amroha during pendency of the trial, after rejecting the bail application of the applicant by Sessions Judge, Amroha vide order dated 13.12.2021.

Brief facts of the present case are that the first information report dated 08.09.2020 has been lodged by the victim against the applicant and four accused persons out of which, two are brothers of the applicant, friend and neighbours stating therein that the marriage of the victim was solemnized with one Gufran about 15 years ago. The victim was living in Delhi with her husband and three daughters. Umair Chaudhary, co accused was the neighbour of the victim, living in a rented house just opposite the victim's house. co-accused, Umair Chaudhary, (real brother of the applicant) allured and caught her in love trap due to which he suggested her to get divorce from her husband, and after being divorced, he promised that he would marry her. It is further alleged that the victim got divorce from her husband. The co-accused took her to his village where he made physical relation with her as a result of which, a child was born, who is now aged about 2 years old. The co-accused, Umair Chaudhary extracted Rs. 2 lac and Gold Jewelry weighing about 6 Tolas from her. The co-accused refused to marry with the victim despite her several requests. It is further alleged that in the month of April, 2020, Co-accused took her to his Village, where the co-accused again made physical relations with her. The victim stayed there for a about a week. In the night of 03.04.2020, while she was sleeping, applicant entered in her room and forcibly committed rape with her. When she complained about it to the Umair Chaudhary and his family then they asked her to keep mum. It is further alleged that on 04.09.2020, she again requested to co-accused to marry her then all the family members of the applicant and the applicant also tried to set her on fire after pouring kerosene oil upon her. The applicant and other family members took her mobile phone and threatened to eliminate her.

After lodging of the first information report on 08.09.2020, the statements of the victim recorded under Section 161 and 164 of Cr.P.C. on 10.09.2020 and 19.02.2020 respectively, the medical examination of the victim was also conducted on 10.09.2020. After recording the statement of prosecution witnesses, charge sheet has been submitted against the applicant and co-accused, Umair Chaudhary under Section 376 ,323, 406, 506 I.P.C and against the other accused persons under Section 323, 406 and 506 I.P.C on 3.12.2021. The applicant was arrested on 03.12.2021.

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 per the allegations levelled in the first information report, the applicant is the real brother of the main accused Umair Chaudhary, who made physical relations with the victim in his village. The victim is in love affairs with the main accused Umair Chaudhary. A child of 2 years was born as a result of their physical relations. It is further submitted that F.I.R has been lodged by the victim after five months of the alleged incident. It is further submitted that dispute between Umair Chaudhary and the victim is matrimonial discord.

It is further submitted that the applicant has filed a Criminal Misc. Writ Petition No. 10372 of 2020 and a division Bench of this Court vide order dated 06.10.2020 stayed the arrest of the applicant till the submission of charge-sheet or police report under Section 173(2) of Cr.P.C. Co accused Umair Chaudhary has been granted bail by this Court in Criminal Misc. Bail Application No. 3821 of 2022 vide order dated 11.02.2022.

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. 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. (a) applicant is real brother of the co-accused Umair Chaudhary.

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

(a) dispute between Umair Chaudhary and the victim pertain to matrimonial discord;

(b) applicant is real brother of the co-accused Umair Chaudhary;

(c) F.I.R. has been lodged by the victim after five months of the alleged incident;

(d) co accused Umair Chaudhary has been granted bail by this Court in Criminal Misc. Bail Application No. 3821 of 2022 vide order dated 11.02.2022.

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, Zishan 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 conditio(a) applicant is real brother of the co-accused Umar Chaudhary. ns:

(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, 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 :- 4.4.2022/aks