Farukh vs State Of U.P.
2022 Latest Caselaw 2464 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14183 of 2022
 

 
Applicant :- Farukh
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Ranjeet Asthana
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Ranjeet Asthana, learned counsel for the applicant and Sri Pankaj Kumar Tripathi, learned A.G.A. for the State and perused the material on record.

The present bail application has been filed on behalf of applicant Farukh under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 08 of 2022 for offence punishable under Section 376 of the Indian Penal Code, registered at Police Station Jhijhana, District Shamli, during pendency of the trial, after rejecting the bail application of the applicant by Additional Sessions Judge (Rape & POCSO Act), Shamli at Kairana vide order dated 24.2.2022.

Brief facts of the case are that the First Information Report dated 4.1.2022 has been lodged against the applicant by the victim stating that she has friendship with the applicant and used to talk him on phone. After that the applicant took the victim to his village Jijaula, police station Jhinjhana, district Shamli prior to two months of lodging of the First Information Report and wanted to marry with the applicant. The applicant had denied solemnising marriage with the victim. The applicant made physical relation with the victim on pretext of marrying with her.

After lodging of the FIR, statement of the victim under Section 161 Cr.P.C. has been recorded on 5.1.2022. Medical examination of the victim was conducted on 6.1.2022. The statement of the victim under Section 164 Cr.P.C. has been recorded on 7.1.2022. After recording the statement of the prosecution witnesses under Section 161 Cr.P.C. charge sheet has been submitted on 5.1.2022.

Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in this case due to ulterior motive. It is further argued that the victim is a resident of Orissa (Bhuwaneshwar). As per the statement of the victim, she contacted with the applicant through social media two years prior to the incident. It is further contended that there is material contradiction and improvement between the allegation of FIR and the statement of the victim recorded under Sections 161 & 164 Cr.P.C.

Learned counsel for the applicant further stated that the victim has turned hostile before the trial court and not supported the prosecution case. It is further argued that the victim herself stated that the applicant was ready to marry with her. The applicant is languishing in jail since 5.1.2022 having no criminal history to his credit. 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) The victim is admittedly major and has friendship with the applicant through social media;

(b) There is material contradiction between the allegation of FIR and the statements of the victim recorded under Sections 161 & 164 Cr.P.C. It would not be appropriate to discuss the same at this stage;

(c) The victim has turned hostile before the trial court.

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, Farukh 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, 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 :- 11.5.2022

M. Tarik