Allahabad High Court
Imtiyaz Ahmad vs State Of U.P. And 2 Others on 19 April, 2023
Bench: Mayank Kumar Jain
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49747 of 2021
Applicant :- Imtiyaz Ahmad
Opposite Party :- State Of U.P. And 2 Others
Counsel for Applicant :- Vipul Kumar Singh,Amit Daga
Counsel for Opposite Party :- G.A.,Shamim Ahmad Ansari
Hon'ble Mayank Kumar Jain,J.
Heard Sri Amit Daga, learned counsel for the applicant and Sri S.K. Ojha, learned A.G.A. for the State and perused the record.
The present bail application has been filed on behalf of applicant in Case Crime No. 137 of 2021 under Sections 376, 506 I.P.C., Section 67-A of I.T Act and Section 3/4 POCSO Act, Police Station Mubarakpur, District- Azamgarh, with the prayer to enlarge the applicant on bail.
It is submitted by learned counsel for applicant that applicant is innocent and has been falsely implicated in the present case. It is further submitted that as per version of the first information report it is alleged that the accused/applicant has committed rape with the informant/victim in the garb of her obscene photograph and continued to harass her for two years. It is further submitted that during that period no complaint was made by the prosecutrix and no alarm was raised by her. It is submitted that the victim was the consensual party with the applicant and physical relations were made with the consent of the prosecutrix. So far as the allegation of making the video viral is concerned the said number does not belong to the applicant while compliance affidavit filed by learned A.G.A. reflects that it was the internet number and no I.P. address has been obtained by the investigating officer, therefore, merely on the basis of statement of witness Naushad, it cannot be presumed that the said number belongs to the applicant. It is further submitted that there is no credible evidence which can indicate that the said video was made viral by the applicant. It is next submitted that the father, mother and brother of the informant stated her age to be 20 years. As per medical examination of the victim, her age was determined above 18 years and as per high school certificate her date of birth is 08.01.2002, therefore, no offence under the POCSO Act is made out. It is further submitted that only one witness i.e. PW-1 Faizan Mohammad examined before the trial court as yet and there is no substantial progress in the trial. So far as the statements of other witnesses are concerned that mobile number from which the obscene video of victim made viral belongs to the applicant, no evidence has been collected by the investigating officer to the effect that said number belongs to the applicant are issued by any telecom company in the name and identity of applicant nor he collected any concrete evidence that in whose name said number was issued by concerned telecom company. It is further submitted that applicant is languishing in jail since 13.07.2021 having no criminal history and that in case he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
Per contra, the learned Additional Government Advocate opposed the prayer for bail application.
In Union of India Vs. K.A. Najeeb (2021) 3 SCC 713, the Hon'ble Apex Court has observed that:-
"15. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee v. Union of India SCC para-15 it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, the Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail."
Considering the entire facts and circumstances of the case and submissions of learned counsel for the parties, nature of evidence, all attending facts and circumstances of the case and the fact that no credible evidence collected by the investigating officer which can indicate that the said obscene video was made viral by the applicant. without expressing any opinion on merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
Let the applicant Imtiyaz Ahmad in the aforesaid crime be released on bail on furnishing a personal bond and two local heavy sureties each in the like amount to the satisfaction of court concerned subject to the following conditions:
(1). The applicant will not tamper with the prosecution evidence during the trial.
(2). The applicant will not influence any witness.
(3). The applicant will appear before the trial Court on the date fixed, unless personal presence is exempted.
(4). 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 to any police officer or tamper with the evidence.
In case of breach of any of the above condition, the prosecution shall be at liberty to move an application before this Court seeking cancellation of the bail.
Order Date :- 19.4.2023
Gaurav
