Uwais vs State Of U.P.
2022 Latest Caselaw 3255 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13096 of 2022
 

 
Applicant :- Uwais
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Sunil Kumar Singh,Ashish Kumar Pathak
 
Counsel for Opposite Party :- G.A.,Anil Kumar
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Sri Sunil Kumar Singh, learned counsel for the applicant, Sri Anil Kumar, learned counsel for the first informant 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 Uwais under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 301 of 2019 for offence punishable under Sections 376, 452 of the Indian Penal Code, registered at Police Station- Sahawar, District- Kasganj during pendency of the trial, after rejecting the bail application of the applicant by In-charge Sessions Judge, Kasganj vide order dated 05.03.2022.

Brief facts of the case are that the first information report has been lodged on 14.10.2019 by the victim against the applicant and two other persons on the basis of an application under section 156(3) of Cr.P.C. stating therein that on 25.08.2019 at 02:00 PM. victim was alone in her house at that time the applicant who is the neighbour of the victim and his house is adjacent to the victim's house, came climbing on the wall of her house and caught hold her from behind, when the victim screamed, the applicant closed her mouth with a cloth and committed rape with her after pointing a country made pistol. The applicant threatened to kill her if she complained. The victim has narrated the whole story to her father and family members, thereafter, victim's father reached the applicant's house, and complaint about the incident to the father and brother of the applicant, they abused her father and threatened him with dire consequences. The police has not lodged her first information report. After that she sent the complaint to the Senior Superintendent of Police by registered post.

After lodging of the first information report, the statement of the victim was recorded under Section 161 Cr.P.C. on 15.10.2019; medical examination of the victim was conducted on 24.10.2019 and the statement of the victim was recorded under Section 164 Cr.P.C. on 24.10.2019. After recording the statement of the independent witnesses namely Munna Lal, Aslam, Shila Devi, Museem, Omkar, Deen Dayal, Yogendra and Riyazuddin under Section 161 of Cr.P.C., the final report has been submitted by the Investigating Officer before the court concerned. On protest petition, the concerned Magistrate summoned the applicant and named co-accused persons. The Magistrate concerned summoned the applicant under Sections 376 and 452 of I.P.C. and two named co-accused persons have been summoned under Section 323 of I.P.C. vide order dated 15.11.2019. The applicant was surrendered before the court concerned on 05.03.2022.

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 on the basis of statement of independent witnesses, who have stated that it is highly improbable to jump three storeyed house to one storey house. It is next contended that some time ago, the marriage of the victim was fixed with applicant but at last moment, applicant denied for marriage.

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. as well as learned counsel for the first informant have 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) The first information report has been lodged by the victim;

(b) After completion of the investigation, final report has been submitted by the Investigating Officer before the court concerned;

(c) On protest petition, applicant has been summoned by the Magistrate concerned;

(d) Applicant is neighbour of the victim and his house is adjacent to the house 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, Uwais 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 :- 18.5.2022

Ishan