Irfan Qureshi vs State Of Up Thru. Secy. Home Deptt. ...
2023 Latest Caselaw 1686 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 11
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13719 of 2022
 

 
Applicant :- Irfan Qureshi
 
Opposite Party :- State Of Up Thru. Secy. Home Deptt. Lko.
 
Counsel for Applicant :- Vinod Kumar Yadav,Akhilendra Pratap Singh,Atul Verma
 
Counsel for Opposite Party :- G.A.
 
Hon'ble Rajesh Singh Chauhan,J.

Heard Sri Atul Verma, learned counsel for the applicant, learned Additional Government Advocate for the State and perused the record.

Learned counsel for the applicant has filed the supplementary affidavit enclosing therewith the certified copy of the ordersheet of the learned trial court, the same is taken on record.

At the very outset, Sri Atul Verma, learned counsel for the applicant has requested that his short term bail application may be dismissed being not pressed.

The present applicant is in jail since 18.06.2021 in Case Crime No. 108 of 2021, under Sections 376/323/506 IPC, Police Station Saadatganj, District Lucknow.

This is second bail application. The first bail application bearing Crl. Misc. Bail Application No. 603 of 2022 has been rejected on 25.01.2022 by Hon'ble Vikas Kunvar Srivastav, J. (since retired). Since the Hon'ble Judge has retired, therefore, the present bail application has been put up before regular Court.

The first bail rejection order dated 25.01.2022 is being reproduced hereinbelow:-

"1. The case is called on through video conferencing.

2. Learned counsel Sri Mohd. Alishah Faruqui, Advocate appeared through video conferencing on behalf of accused-applicant Irfan Qureshi in virtual hearing.

3. Copy of the bail application has already been served in the office of learned Government Advocate, pursuant thereto learned Additional Government Advocate Sri Anurag Singh Chauhan, Advocate appeared through video conferencing to protest the bail plea of the accused-applicant.

4. The present bail application is moved on behalf of the accused-applicant-Irfan Qureshi who is involved in Case Crime No. 108 of 2021, under Sections 376, 323, 506 IPC, registered at Police Station Saadatganj, District Lucknow.

5. Learned counsel for the accused-applicant submits that the First Information Report is lodged against him falsely which is to the effect that the accused-applicant was familiar with the complainant and her other family members, therefore he was a regular visitor of their home. According to the complainant, husband of the complainant Naeem Rahman Chisti was committed to jail in a crime in which he was falsely implicated with the conspiracy of the accused-applicant. During the imprisonment of Naeem Rahman Chisti, husband of the complainant, the present accused-applicant took undue advantage and established physical and sexual relation with the complainant. On being opposed, he used to beat her brutally and cruelly, by reason of which she fled away from the house. The accused-applicant lodged a missing report, however when the complainant succeeded to find out her husband Naeem Rahman Chisti, she opted to file the present First Information Report.

6. It is also alleged that the complainant was forcibly made to sign a 'Nikahnama' during the period of imprisonment of her husband by the accused-applicant.

7. Learned counsel for the accused-applicant informs that the 'Nikahnama' was executed with consent of the complainant. Moreover, he alleged that the complainant was consensually living with him in relation in his house.

8. It is not denied that during the living in relation by virtue of 'Nikahnana' sought executed by the present accused-applicant from the complainant, the husband Naeem Rahman Chisti has not given divorce to her. In the circumstances, prosecution case against the present accused-applicant of committing rape by taking undue advantage of complainant's compulsion and helplessness is found established.

9. The parameters of grant and refusal of bail are laid down by Hon'ble Supreme Court in the judgment rendered in the case of Prahlad Singh Bhati Vs. NCT, Delhi and another - (2001 4 SCC 280 ). The relevant para 8 of the judgment is being quoted hereunder:-

"8. The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it (sicitself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."

10. When the case is considered in view of the aforesaid, it is clear that the prosecution case, prima facie, in the facts and admission in the bail application and in the supporting affidavit, is found established.

11. Learned AGA for the State submits that the accused-applicant seems influencial, therefore in case of release he may adversely affect the witnesses. He further submits that in the matter investigation has been completed and chargesheet has been submitted.

12. In the aforesaid circumstances, the trial court is directed to frame charge against the accused-applicant and call the witnesses of the case, particularly the complainant of the case, and record the statements within a period of six months.

13. In view of the aforesaid direction, the bail application as moved on behalf of the accused-applicant is rejected at this stage with liberty to file the bail application again on expiry of the aforesaid term of six months."

Sri Atul Verma, learned counsel for the applicant has pressed the second bail application drawing attention of this Court towards Para 12 and 13 of the bail rejection order dated 25.01.2022 (supra). This Court in Para 12 had directed to the learned trial court to frame charge against the accused-applicant and call the witnesses of the case, particularly the complainant of the case and record the statements within a period of six months. In para 12, this Court had given liberty to the present applicant to file a bail application after expiry of aforesaid period of six months.

Sri Verma has stated that the charge has been framed by the learned trial court on 09.12.2021. He further drawn attention of the Court towards the certified copy of the ordersheet which makes it clear that from 07.02.2022 to 04.01.2023, the witnesses have not been examined. However, on 02.12.2022, the doctor has been examined as PW-1 and on 16.12.2022, the Investigating Officer has been examined as PW-2. As per Sri Verma, no fact of witnesses have been examined. Sri Verma has drawn attention towards the order dated 05.05.2022 of the trial court whereby the trial court has issued bailable warrant of Rs.10,000/- against the informant/prosecutrix. Sri Verma has stated that despite bailable warrant being issued against her, she could not appear. Sri Verma again drawn attention of this Court towards order dated 03.09.2022 which indicates that the address of the prosecutrix is not traceable. He has also drawn attention of this Court towards order dated 06.10.2022 of the trial court whereby a direction has been issued to the prosecution to produce the prosecutrix at the earliest.

Sri Verma has stated that even if the prosecutrix was not traceable or she was not responding to the Court, the Court must have taken appropriate coercive steps but no such coercive steps have been taken. He further submitted that if the prosecutrix was not responding to the learned trial court, at least other fact/material witnesses should have been examined but except the doctor and Investigating Officer, no other prosecution witnesses have been examined. As per Sri Verma, the period of six months provided by this Court was expired on 25.07.2022 and before that date, at least some fact/relevant witnesses should have been examined by the learned trial court but no proper efforts have been taken to examine the other fact/relevant witnesses and as an eyewash, the doctor has been examined as PW-1 on 02.12.2022 and the Investigating Officer was examined as PW-2 on 16.12.2022, much later to the stipulated time being fixed by this Court, therefore, as per Sri Verma, the learned trial court has not shown any respect towards the direction of this Court. Sri Verma has stated that the behaviour and intention of the prosecutrix is dubious inasmuch as when she lodged one FIR bearing FIR No. 0115 of 2021, under Sections 323, 354, 506 IPC, Police Station Sarojini Nagar, District Lucknow on 03.03.2021 against four accused persons, wherein she has stated herself as a wife of Mohd. Irfan, the applicant (Annexure no. 5 to the bail application) but when she lodged the impugned FIR on 18.06.2021 against the present applicant, she has stated herself as a wife of Sri Naeem Rahman Chisti. Therefore, Sri Verma has submitted that when her earlier husband, Sri Naeem Rahman Chisti was in jail, she was living with Mohd. Irfan as his wife. Photographs to that effect have been annexed as Annexure no. 10 to the application. However, as soon as her husband comes out from jail, she started living with him and lodged the impugned FIR against the present applicant.

As per Sri Verma, since the chargesheet has been filed and the present applicant is in jail for two years and seven months and specific direction of this Court dated 25.01.2022 (supra) has not been followed by learned trial court in it's letter and spirit, therefore considering the aforesaid fact, the present applicant may be enlarged on bail, considering the aforesaid fact and circumstances as new ground. Sri Verma has stated that, however, he has not pressed the short term bail application but he has informed the Court that the present applicant is suffering from mouth and skin cancer and relevant medical papers have been enclosed with the said application, therefore, on the basis of severe illness, the second bail application of the present applicant may be disposed of sympathetically.

Per contra, learned AGA has opposed the bail application and has submitted that the first bail application of the present applicant has been rejected by speaking and reasoned order and in Para 10 of the bail rejection order dated 25.01.2022, this Court had observed that the prosecution case, prima facie, is found established, therefore, the ground taken by Sri Verma while pressing the second bail application may not be accepted and the present bail application may be rejected. Learned AGA further submits that the present applicant is having criminal history of seven cases, however the same has been explained by learned counsel for the applicant in Para 39 of the bail application.

Without entering into the merits of the issue, considering the submissions of learned counsel for the parties, contents and allegations of the FIR and more particularly considering the order dated 25.01.2022 passed by this Court thereby the first bail application of the applicant has been rejected what I find is that despite the specific order had been passed by this Court to record the statements of the witnesses, particularly of the complainant within a period of six months but no statements of fact/relevant witnesses have been recorded within the aforesaid stipulated time including the prosecutrix/complainant. Since the whereabouts of the informant/complainant/prosecutrix are not traceable, as per report of prosecution apprised to the learned trial court, it appears that no proper coercive steps have been taken against the complainant/prosecutrix. Even if the whereabouts of the complainant/prosecutrix was not traceable, at least the statements of other fact/relevant witnesses must have been recorded on/before 25.07.2022, within stipulated time but admittedly, no fact/relevant witnesses have been examined within the stipulated time. However, on 02.12.2022 and 16.12.2022, the doctor and Investigating Officer have been examined as PW-1 and PW-2 respectively. The aforesaid examination of the witnesses has been done after about 11 months from the order dated 25.01.2022, whereas the stipulated time was six months. I am unable to comprehend as to why the doctor and Investigating Officer have been examined as PW-1 and PW-2 when other fact/relevant witnesses have not been examined. Normally, the learned trial court firstly examines the fact/relevant/material witnesses, thereafter the formal witnesses are examined. However, in the present case, ignoring the specific direction of this Court, leaving the fact/relevant/material witnesses, the doctor and Investigating Officer have been examined as PW-1 and PW-2 respectively and no reason has been indicated in the order of learned trial court as to why other fact/relevant/material witnesses have not been examined.

The aforesaid fact and circumstances make it clear that no sincere efforts have been taken by the learned trial court to examine the other fact/relevant/material witnesses within the stipulated time as those witnesses have yet not been examined. Therefore, the aforesaid reason would convince the Court to consider the aforesaid laches on the part of the trial court as a new ground to consider the second bail application. Furthermore, the present application is said to have suffering from mouth and skin cancer. His medical papers have been enclosed in short term bail application, therefore, the aforesaid ground is also being considered as it relates with the life of the present applicant which is protected under Article 21 of the Constitution of India.

Accordingly, the bail application is allowed.

Let the applicant Irfan Qureshi, involved in aforesaid case crime number, 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.

(v) The applicant shall not leave the country without permission of the Court concerned.

Before parting with it is expected that the trial shall be concluded with expedition. Further, the learned trial court may take all coercive measures as per law if either of the parties do not co-operate in the trial properly. The learned trial court shall fix short dates to ensure that trial is concluded at the earliest.

[Rajesh Singh Chauhan,J.]

Order Date :- 17.1.2023

kkv/