Samleem @ Maksood vs State Of U.P. And Another
2022 Latest Caselaw 18877 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 65
 

 
Case :- CRIMINAL APPEAL No. - 1386 of 2022
 

 
Appellant :- Samleem @ Maksood
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Yogesh Kumar Tripathi,Mir Sayed
 
Counsel for Respondent :- G.A.,Raj Kumar Gupta,Satish
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Sri Yogesh Kumar Tripathi, learned counsel for the appellant, Sri Satish, learned counsel for the second respondent, Sri Virendra Kumar Maurya, learned A.G.A. for the State and perused the material on record.

The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short SC/ST Act) has been preferred by the appellant Saleem @ Maksood to set aside the impugned order dated 15.02.2022 passed by Special Judge (SC/ST Act)/ Additional Sessions Judge, Gorakhpur in Bail Application No. 261 of 2022 arising out of Case Crime No. 172 of 2021, under Sections 328, 365, 376 and 406 I.P.C. and Section 3(2)(v) of SC/ST Act, P.S. Sikariganj, District Gorakhpur, by which bail application of the appellant has been rejected.

The brief facts of the case are that the first information report dated 9.12.2021 was lodged by the husband of the victim against the appellant and five other named accused persons stating that marriage of first informant was solemnized with the victim in 2014 and he was doing labour job in Hyderabad. On 3.11.2021, he returned from Hyderabad, after calling his wife. His wife told him that appellant committed rape with her after sniffing some intoxicated substance and made a video of the incident. On the basis of such video, the appellant used to threat wife of the first informant and give some medicine and intoxicated substance, due to which her mental health was not good and on the basis of such video, the appellant threats her to change her religion. On 28.11.2021, appellant and other named accused persons, kidnapped the wife and daughter of the first informant. It is further alleged that Rs. 34,600/-, which is in the account of his wife and around 10,000 cash and some ornaments value of Rs. 1,10,000/- and paper of one sale-deed, which is in favour of his wife, were also not in the house.

After lodging of the first information report, statement of the victim under Section 161 Cr.P.C. was recorded on 7.1.2022. Medical examination of the victim was conducted on 8.1.2022. Statement of the victim under Section 164 Cr.P.C. was recorded on 11.1.2022. After recording the statements of the victim and other prosecution witnesses, charge-sheet had been submitted against the appellant and other co-accused Amen Ansari and the Investigating Officer exonerated the other co-accused persons. Appellant was arrested on 08.01.2022.

Learned counsel for the appellant submits as under:

(1) The appellant is innocent and has been falsely implicated in the present case due to ulterior motive.

(2) As per statement of the victim recorded under Section 161 and 164 of Cr.P.C., the victim was consenting party and she travelled along-with her child with the appellant from Gorakhpur to Delhi by four wheeler then train and resided with the appellant for one month and 9 days.

(3) No video was collected during course of investigation;

(4) The victim is a married lady.

(5) It has also been submitted that co-accused, Amen Ansari having similar role, have already been enlarged on bail by this Court vide order dated 23.11.2022 in Criminal Appeal No. 4629 of 2022 and the applicant is also entitled to be enlarged on bail on the ground of parity.

(6) The appellant is languishing in jail since 08.01.2022 and has no criminal history

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 learned counsel for respondent no.2 have supported the order passed by the Special Judge (SC/ST Act) and vehemently opposed the prayer for grant of bail to the applicant. But, they could not point out any material to the contrary. 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 victim is a married lady;

(b) the victim was consenting party and she travelled along-with her child with the appellant from Gorakhpur to Delhi by four wheeler then train and resided with the appellant for one month and 9 days.

(c) No video was collected during the investigation;

(d) The appellant is languishing in jail since 08.01.2022.

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 15.02.2022 is set aside.

Let appellant/applicant Saleem @ Maksood 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 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 :- 28.11.2022

Ishan