Allahabad High Court
Mohabbey Ali vs State Of U.P. And 3 Others on 14 February, 2023
Bench: Krishan Pahal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 83
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6818 of 2023
Applicant :- Mohabbey Ali
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Sunil Kumar Singh
Counsel for Opposite Party :- G.A.
Hon'ble Krishan Pahal,J.
1. List has been revised.
2. Learned A.G.A. has informed that the notice to the informant has been served on 07.02.2023.
3. Heard Shri Sunil Kumar Singh, learned counsel for the applicant as well as Shri V.K.S. Parmar, learned A.G.A. for the State and perused the record.
4. Applicant seeks bail in Case Crime No.0177 of 2022, under Sections 376 and 506 I.P.C. and 5/6 POCSO Act, Police Station Bhagatpur, District Moradabad, during the pendency of trial.
5. As per prosecution story, the applicant and the victim are stated to have known to each for two years before the date of incident and the applicant is stated to have called the victim to his house on 03.07.2022 and is stated to entered into corporeal relationship with her on the pretext of marrying her next day. The applicant is stated to have refused to marry her the next day and is stated to have left her at Bahedi Railway Station.
6. Learned counsel for the applicant has stated that the applicant is absolutely innocent and has been falsely implicated in the present case. The victim is a major and as per FIR, her age is 18 years. Learned counsel has placed much reliance on the judgments of Apex Court passed in the case of Pramod Suryabhan Pawar vs. State of Maharashtra and Another reported in 2019 (9) SCC 608 and Ansaar Mohammad vs. State of Rajasthan and Another, reported in 2022 SCC OnLine SC 886, wherein it has been stated that entering into any kind of corporeal relationship with a person on the pretext of getting married cannot be termed as rape. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length. There is no criminal history of the applicant. The applicant is languishing in jail since 12.12.2022. In case, the applicant is released on bail, he will not misuse the liberty of bail.
7. Per contra, learned A.G.A. has vehemently opposed the bail application and has stated that as per school certificate, the date of birth of the victim is 12.07.2004, which renders her age marginally less than 18 years.
8. Learned counsel for the applicant has further placed much reliance on the settled case law of the Apex Court in Sushil Kumar vs. Rakesh Kumar, (2003) 8 SCC 673, wherein it has been stated that it is more often in the Indian Society that person shows the age of their wards much below than their actual age.
9. Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, the evidence on record, and without expressing any opinion on the 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.
10. Let the applicant- Mohabbey Ali involved in aforementioned case crime number be released on bail on furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.
(i) The applicant will not tamper with the evidence during the trial.
(ii). The applicant will not pressurize/ intimidate the prosecution witness.
(iii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
(iv) The applicant shall not commit an offence similar to the offence of which he is accused, or suspected of the commission of which he is suspected.
(v) 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.
11. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
12. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.
Order Date :- 14.2.2023
Ravi Kant
