Khurshid vs State Of U.P. And Another
2022 Latest Caselaw 15801 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 65
 
Case :- CRIMINAL APPEAL No. - 1538 of 2022
 
Appellant :- Khurshid
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Amit Kumar Singh
 
Counsel for Respondent :- G.A.,Arun Kumar Pandey
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Amit Kumar Singh, learned counsel for the appellant, Shri Arun Kumar Pandey, learned counsel for the second respondent, Shri R.P. Singh, learned A.G.A. for the State and perused the material placed on record.

The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant Khurshid to set aside the impugned order dated 17.12.2021, whereby the Special Judge, SC/ST Act, Mau has rejected the bail application No. 1949 of 2021 of the appellant moved by him in Case Crime No. 331 of 2021, under Sections 376-D, 120-B, 506 I.P.C. and Section 3 (2) (V) of SC/ST Act, Police Station Kopaganj, District Mau.

Brief facts of the case are that the first information report dated 20.07.2021 was lodged by the victim against the appellant and seven other named accused persons including two ladies Tabassum and Tayyaba stating that there is a dispute between the victim and her husband Pankaj, which is pending in District Court, Mau. In last August, neighbour of in-laws of the victim Tabssum and Tayyaba came her house and stated that her husband and father-in-law wants to compromise the matrimonial dispute and fixed a date for talk of compromise in the house of co-accused Tabassum. The victim reached the house of co-accused Tabassum in the evening, where other co-accused persons Shahnaz, Tabassum, Tayyaba and Abdul Rahaman were present. After talk of the compromise, on taking some adulterated tea offered by co-accused Tabassum and Tayyaba, the victim become unconscious and they left the co-accused Abdul Rahman in the room and bolted the room from outside. Thereafter, co-accused Abdul Rahaman committed rape with her and made a video and on the basis of video, other co-accused persons including the appellant committed rape upon her again on 10.07.2021 at Ghaziabad.

After lodging of the first information report, statement of the victim under Section 161 Cr.P.C. had been recorded on 20.07.2021. Medical examination of the victim was conducted on 23.07.2021 and statement under Section 164 Cr.P.C. was recorded on 27.07.2021. After recording the statement of the prosecution witnesses, charge-sheet had been submitted against six persons including the appellant and the Investigating Officer exonerated the named co-accused Pankaj and Sohan on 07.01.2022. The appellant was arrested on 21.10.2021.

Learned counsel for the appellant submits that the appellant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that appellant is the relative of co-accused Tabassum. It is further submitted that first information report has been lodged against all the relatives of co-accused Tabassum and Abdul Rahaman after about one year of the first incident. It is further submitted that no obscene video/electronic evidence, as alleged, has been recovered during the course of investigation and without collecting the obscene video, charge-sheet has been submitted. It is further submitted that on the same set of allegation, co-accused persons Pankaj and Sohan have been exonerated by the Investigating Officer. The appellant has no criminal history. It is further submitted that named co-accused Riyaz has been granted bail by Co-ordinate Bench of this Court vide order dated 03.06.2022 passed in Criminal Appeal No. 20 of 2022. It is further submitted that in the aforesaid order, the Court has observed that co-accused Riyaz was in Saudi Arabia at the relevant point of time.

It is further submitted that there is no possibility of the appellant of fleeing away after being released on bail or tampering with the witnesses. In case the appellant is enlarged on bail, he shall not misuse the liberty of bail.

Per contra, learned A.G.A. as well as counsel for the second respondent have supported the order passed by the Special Judge and vehemently opposed the prayer for grant of bail to the applicant. They further submit 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 was lodged by the victim after one year of the first incident against five relatives of co-accused Tabassum including the appellant;

(b) No obscene video/mobile/electronic evidence has been collected during the course of investigation;

(c) There is no evidence to link the relation between husband of victim Pankaj and other co-accused persons including the appellant;

(d) Co-accused Riyaz having similar role has been granted bail by Co-ordinate Bench of this Court after observing that co-accused Riyaz was in Saudi Arabia at the relevant point of time;

(e) The appellant is languishing in jail since 21.10.2021;

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 criminal appeal is allowed and impugned order dated 17.12.2021 is set aside.

Let appellant/applicant, Khurshid 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.

Order Date :- 3.11.2022

Shafique