Allahabad High Court
Mohd. Irshad vs State Of U.P. on 28 January, 2023
Bench: Krishan Pahal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 83
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41003 of 2022
Applicant :- Mohd. Irshad
Opposite Party :- State of U.P.
Counsel for Applicant :- Alok Sharma,Raja Ullah Khan
Counsel for Opposite Party :- G.A.,Arun Kumar Singh,Sunil Kumar Singh
Hon'ble Krishan Pahal,J.
1. List has been revised.
2. Supplementary affidavit filed by learned counsel for the applicant is taken on record.
3. Heard Sri Raja Ullah Khan, learned counsel for the applicant and Sri Sunil Kumar Singh, learned counsel for the informant as well as Sri Ram Mohit Yadav, learned A.G.A. for the State and perused the record.
4. Applicant seeks bail in Case Crime No. 100 of 2022, under Sections 376, 323, 504, 506 I.P.C., Police Station Sindhauli, District Shahjahanpur, during the pendency of trial.
5. As per prosecution story, the applicant is stated to have entered into corporeal relationship with the victim on the pretext of marrying her for a period of more than eight years and later on is stated to have refused to marry her and even is stated to have demanded Rs.4 Lakhs from her which was taken by him at Kutchery Shahjahanpur, UP.
6. Learned counsel for the applicant has stated that the applicant is absolutely innocent and has been falsely implicated in the present case. Learned counsel has stated that the victim has not alleged a single allegation of forceful sexual assault against the applicant. Learned counsel has placed much reliance on the judgments of Apex Court passed in 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 marriage cannot be termed as rape and has stated that as such no offence is made out against the applicant. Learned counsel has further stated that an FIR No. 255 of 2021 was also lodged by the same informant against the applicant under Sections 498-A, 323 and 504 I.P.C. alleging that he has demanded dowry and she is married wife of the applicant. Learned counsel has further stated that the present FIR is self inconsistent to the FIR No. 255 of 2021. The said allegations leveled in the present case are not tenable. Learned counsel has further stated that charge-sheet has been filed against the applicant in that case under Sections 498-A, 323 and 504 I.P.C. 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. Learned counsel has stated that the applicant has no other criminal antecedents to his credit except the two FIRs lodged by the same informant. The applicant is languishing in jail since 21.6.2022. In case, the applicant is released on bail, he will not misuse the liberty of bail.
7. Per contra, learned counsel for the informant as well as learned A.G.A. have vehemently opposed the bail application and stated that applicant has entered into physical relationship with the victim on the false pretext of marriage and is not entitled for bail.
8. Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, going through the evidence on record and taking into consideration that applicant had entered into corporeal relationship with consent on the alleged false pretext of marriage and also the judgments of Apex Court in Pramod Suryabhan Pawar (supra) and Ansaar Mohammad (supra), 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.
9. Let the applicant- Mohd. Irshad 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.
10. 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.
11. 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 :- 28.1.2023
Vikas
