Bahlol Naqvi vs State Of U.P. And Anr.
2022 Latest Caselaw 6444 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 12
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7738 of 2020
 
Applicant :- Bahlol Naqvi
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Applicant :- Syed Aftab Ahmad,Anurag Singh,Vinay Prakash Tiwari,Vineet Kumar Mishra,Vivek Kumar Srivastava
 
Counsel for Opposite Party :- G.A.,Pawan Kumar Pandey
 
along with
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 580 of 2021
 

 
Applicant :- Bakshi Nath
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Applicant :- Dharmendra Kumar Misra,Anand,Pankaj Shukla
 
Counsel for Opposite Party :- G.A.,Pawan Kumar Pandey,Shashank Singh
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

The above placed bail applications in order to avoid repetition of narration of facts and to avoid multiplicity of reasoning are being decided simultaneously by passing a common order.

Heard Shri Vineet Kumar Mishra, learned counsel for the accused-applicant/Bahlol Naqvi, Shri Pankaj Shukla, learned counsel for the accused-applicant/Bakshi Nath, Shri Shashank Singh, learned counsel for complainant/informant in Crl. Misc. Bail Application No. 580 of 2021 and holding brief for Shri Pawan Kumar Pandey, learned counsel for complainant/opposite party no.2 in Crl. Misc. Bail Application No. 7738 of 2020 as well as learned A.G.A. for the State and perused the record.

These bail applications have been moved on behalf of the accused/applicants- Bahlol Naqvi and Bakshi Nath for grant of bail, in Case Crime No. 112 of 2020, under Sections 363, 366, 376 I.P.C. and Section 3/4 POCSO Act, Police Station Kasimpur, District Hardoi, during trial.

Learned counsel for the accused-applicants while pressing the bail application submit that the applicants have been falsely implicated in this case and they have not committed any offence as claimed by the prosecution.

Shri Vineet Kumar Mishra, learned counsel for the accused-applicant/Bahlol Naqvi submits that there is inordinate delay in lodging the first information report and the victim/prosecutrix has been recovered on 03.05.2020 with co-accused Bakshi Nath and at the time of recovery of the prosecutrix he had stated that he had solemnized marriage with the prosecutrix/victim. While referring to the statement of the prosecutrix recorded under Section 161 and 164 Cr.P.C. and also to a transfer order of the applicant Bahlol Naqvi of date 03.12.2019, it is vehemently submitted that there are material contradictions in the statement of the prosecutrix recorded under Section 161 and 164 Cr.P.C., while in her statement recorded under Section 161 Cr.P.C. she had referred the applicant Bahlol Naqvi as the teacher and also of commission of rape by him on 21.02.2020 while in her statement recorded under Section 164 Cr.P.C. she has categorically stated that Bahlol Naqvi had not done anything illegal with her on 21.02.2020. While referring to the statement of the Principal Ishrat Husain whose statement was recorded before the trial Court as P.W.-4, it is submitted that the name of the applicant has been dragged in this case only on account of the fact that the brother of the applicant Bahlol Naqvi is a 'union leader' and on some issue in the past there was some quarrel between one Manisha Pandey and applicant and the involvement of the applicant in this case has only been made on that basis. While referring to the age of the prosecutrix, it is submitted that her medical age has been assessed as 16 years and having regard to two years variable either side, the prosecutrix was of an age where she can make decisions and since she has been recovered from the custody of the co-accused Bakshi Nath no offence in fact could be attributed to the applicant. It is also submitted by him that no abnormality or any injury of any kind has also been noticed on the person of victim in the medical reports.

Shri Vineet Kumar Mishra, learned counsel for the accused-applicant/Bahlol Naqvi also submits that earlier the applicant was involved in a false case of the similar nature, however, he has been acquitted and judgment and order dated 11.12.2018 of the trial Court in this regard is also placed at Page No. 39 of the paper book. It is next submitted that applicant is languishing in jail in this case since 08.07.2020 and there is no apprehension that after being released on bail he may flee from the course of law or may otherwise misuse the liberty.

Shri Pankaj Shukla, learned counsel for the accused-applicant/Bakshi Nath vehemently submits that the applicant has solemnized marriage with the prosecutrix and as the prosecutrix was not having any age certificate with her he was not in a position to ascertain her age and as he belongs to 'Sapera Caste' where marriages are solemnized in different way no offence in fact has been committed by the applicant. It is also submitted that the victim was of an age where she can take decisions. The applicant Bakshi Nath is not having any criminal history and is detained in prison in this case since 03.05.2020 and there is no apprehension that after being released on bail he may flee from the course of law or may otherwise misuse the liberty.

Shri Shashank Singh, learned counsel for opposite party no.2 in Crl. Misc. Bail Application No. 580 of 2021 and holding brief for Shri Pawan Kumar Pandey, learned counsel for complainant/opposite party no.2 in Crl. Misc. Bail Application No. 7738 of 2020 submits that the victim at the time of the commission of the offence was of very tender age and it was not possible for her to differentiate between, as to whether the applicant was in fact appointed as a teacher in the school as he was also taking classes.

It is also submitted that the date of birth of the prosecutrix as per the educational record of the school is 05.03.2007, by which she comes of about 13 and half years at the date and time of the crime and having regard to the statement of the prosecutrix recorded under Section 161 and 164 Cr.P.C. wherein she has corroborated the allegations of the F.I.R. and imputed the allegation of rape to both the accused persons, the applicants are not entitled to be released on bail. It is next submitted that the applicants had also committed similar offence earlier, however, on account of the hostility of the prosecutrix he was acquitted of the charges and, thus, the applicant is having criminal history of committing the similar offences in the past.

Learned A.G.A. has also submitted that having regard to the tender age of the prosecutrix and her statements recorded under Section 161 and 164 Cr.P.C, the applicants are not entitled to be released on bail.

Having heard learned counsel for the parties and having perused the record, it would be evident that the first information report of the incident was lodged by the father of the prosecutrix on 26.02.2020 at Police Station Kasimpur, District Hardoi alleging therein that his daughter aged about 13 years had gone to ease herself on 21.02.2020 and is not traceable since then. However, the victim is shown to have been recovered on 03.05.2020 on an information provided by the informer along with applicant Bakshi Nath and her statement under Section 161 Cr.P.C. was recorded wherein she had stated that when she was promoted to Class VII she was used to be molested by the applicant Bahlol Naqvi who was also making sexual intercourse with her and was also talking to her on telephone and due to apprehension she could not bring this fact in the knowledge of her family members and on 21.02.2020 she was called by the applicant at 'Hiya Pul' on the pretext that he will marry her and she without informing her family members had gone to that place at 6:00 am. on 21.02.2020 whereon the applicant Bahlol Naqvi had instructed him to go to Gausganj where she find him and she was taken in a 'vehicle' and applicant Bahlol Naqvi again committed rape on her and thereafter left and did not return. She boarded a 'bus' where she met with the applicant Bakshi Nath who had taken her to his village 'Jogidera' and solemnized marriage with her on 06.03.2020 and despite her resistance, is committing rape on her. In her statement recorded under Section 164 Cr.P.C. she had supported the allegation of rape with the variation that on 21.02.2020 when she was called by the applicant Bahlol Naqvi, no sexual intercourse had happened at that day. The date of birth of the victim admittedly, as per the educational record of the school is 05.03.2007, thus, at the time of the alleged incident the victim was aged about 13 years. The medical report of the victim, however, is not showing any abnormality. It is also evident from the record that while submitting charge-sheet, 08 witnesses were sighted by the prosecution and out of these 08 witnesses, four witnesses have been testified before the court below. The statement of the last witness was recorded on 08.06.2022, thus, the trial appears to be at the concluding stage.

Having regard to all the facts and circumstances of the case as well as the material available on record and also keeping an eye on the statement of the prosecutrix recorded under Section 161 and 164 Cr.P.C. wherein she has supported the core story of the prosecution as well as having regard to her tender age, this Court do not find any good ground to release the applicants on bail.

Thus, the bail application moved on behalf of the applicants, Bahlol Naqvi and Bakshi Nath is, hereby, rejected.

The trial Court is, however, directed to expedite the trial, as only few prosecution witnesses are left to be testified and make all out efforts to conclude the same by fixing the case at least twice in a week.

A copy of this order be sent to the trial Court immediately.

Order Date :- 11.7.2022/Praveen