Allahabad High Court
Shahzad vs State Of U.P. And 3 Others on 14 February, 2023
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 73
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2952 of 2023
Applicant :- Shahzad
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Hemant Kumar
Counsel for Opposite Party :- G.A.
Hon'ble Siddharth,J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
There is allegation against the applicant of abduction of minor girl, illegal confinement, beating, commission of offence of rape besides offence under Section 3/4 POCSO Act.
Learned counsel for the applicant submits that the implication under Section 3/4 POCSO Act is unjustified since the age of the victim as per report of CMO is about 18 years. She is not minor but major. He has further submitted that the victim has alleged the offence of rape against the applicant. The medical report does not supports the prosecution case. In the statement of the victim before the doctor she has stated that the applicant called her from house. Thereafter she was taken to the factory where the applicant committed alleged offence. Thereafter she made phone call to her family members and came back to her house and lodged the first information report. In her statement recorded under Section 161 Cr.P.C she has stated that applicant gave her a Tabiz, thereafter she lost conscious and he took her in the room of the factory, where he committed alleged offence. In the factory she cried for help but due to sound of machinery, nobody could hear her voice. She was detained there for six days and thereafter she ran away. In her statement recorded under Section164 Cr.P.C., she stated that she was going to her house when the applicant met her in the way he beated her and gave her a pill. After consuming the same she become unconscious and he took her to the factory and committed the alleged offence. On 20.06.2019 police came and arrested both of them and took them to the police station. Learned counsel for the applicant further submits that the applicant was not arrested as alleged in the statement of the victim. He was arrested on 23.06.2019 and since then he is in jail. Applicant has no criminal history to his credit.
Learned AGA has opposed the prayer for bail but could not dispute the above submissions.
Keeping in view the nature of the offence, evidence, complicity of the accused; submissions of the learned counsel for the parties noted above; finding force in the submissions made by the learned counsel for the applicant; keeping view the uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under trial having fundamental right to speedy trial; larger mandate of the Article 21 of the Constitution of India and recent judgment dated 11.07.2022 of the Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021 and considering 5-6 times overcrowding in jails over and above their capacity by the under trials 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.
Let the applicant, Shahzad, involved in Case Crime No.420 of 2019, under Sections 363, 376, 323, 342 I.P.C and Section 3/4 POCSO Act, Police Station Medical, District- Meerut 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 subject to following conditions. Further, before issuing the release order, the sureties be verified.
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) 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.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.
(iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail 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.
(v) 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.
In case of breach of any of the above conditions, the complainant is free to move an application for cancellation of bail before this court.
Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Order Date :- 14.2.2023
SS
