Allahabad High Court
Nazim Husain vs State Of U.P. on 14 November, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25706 of 2022
Applicant :- Nazim Husain
Opposite Party :- State of U.P.
Counsel for Applicant :- Shashi Kant Shukla,Subhash Chandra Pandey
Counsel for Opposite Party :- G.A.,Asha Parihar,Pratik Chandra
Hon'ble Manish Mathur,J.
1. Supplementary affidavit and rejoinder affidavit filed by the learned counsel for the applicant is taken on record.
2. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State, learned counsel for the informant and perused the record.
3. This first bail application has been filed with regard to Case Crime No. 671 of 2021 under Sections 376, 504, 506, 325 I.P.C., P.S. Katghar, District Moradabad.
4. As per contents of first information report, the informant was in physical relationship with the applicant for a period of three years prior to the date of incident which was established on the pretext/promise of marriage. It is stated that the informant received a phone call from the applicant on 27.11.2021 at about 11.00 AM stating that she should be ready so that both can get married. It is further stated that subsequently the informant went with applicant and his friend to a hotel where she was raped and thereafter taken to applicant's house stating that he had married the informant but since his family opposed the marriage, applicant along with co-accused inflicted injuries upon the informant on 28th November, 2021 at about 09.00 PM and left her for dead. It is also stated that she was subsequently rescued by the other villagers.
5. Learned counsel for applicant submits that the applicant has been falsely implicated for the charges levelled against him and that parties were in consensual relationship without any false promise of marriage. It is also submitted that there is material inconsistency in the stand of informant with other evidence since in the first information report she is said to have been attacked by the applicant and co-accused on 28.11.2021 at about 09.00 PM but as per statement of one Dr. Shamim, brought on record by means of supplementary affidavit, the informant was examined by him on the same day at about 7-8 PM, which is prior to the time of incident indicated in the first information report. As such, it is submitted that the applicant is being made scapegoat for the injuries suffered by the informant elsewhere.
6. Learned Additional Government Advocate appearing on behalf of State as well as learned counsel for the informant have opposed the bail application with the submission that the applicant has established physical relationship with the informant on false pretext of marriage and would, therefore, come within the purview of Section 375 IPC and would constitute rape.
7. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :-
"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."
"27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."
8. Considering the submissions advanced by learned counsel for the parties and upon perusal of the material on record, it appears from perusal of first information report that admittedly the informant and the applicant were in physical relationship since three years prior to date of incident. The aspect whether physical relationship was established due to promise of marriage, which was false from very inception or amounting to breach of promise is subject matter of evidence to be led in trial. However, at this stage, the time of incident as narrated in the first information report does not appear to be corroborated by the statement of said Dr. Shamim, which is also available in the case diary as examined by the learned A.G.A. The applicant is in jail since 21.05.2022 with charges have not yet been framed. As such, without expressing any opinion on the merits of case, this Court finds, the applicant is entitled to be released on bail in this case.
9. Accordingly bail application is allowed.
10. Let applicant Nazim Husain, involved in the aforesaid case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) 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 court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) 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 Cr.P.C. If in the opinion of the trial court, 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 against him in accordance with law.
Order Date :- 14.11.2022
Ashish
