Allahabad High Court
Hasmuddin vs State Of U.P. on 13 July, 2023
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:140004
Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28489 of 2023
Applicant :- Hasmuddin
Opposite Party :- State of U.P.
Counsel for Applicant :- Haya Rizvi
Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Ms. Ifra Fatima, Advocate holding brief of Mrs. Haya Rizvi, the learned counsel for applicant and the learned A.G.A. for State.
Perused the record.
This application for bail has been filed by applicant Hasmuddin, seeking his enlargement on bail in Case Crime No.153 of 2023, under Section 376 I.P.C., Police Station- Phasu, District- Bulandshahr during the pendency of investigation and trial.
Record shows that the first informant/prosecutrix Smt. Kavita lodged an F.I.R. dated 27.05.2023, which was registered as Case Crime No.0153 of 2023, under Section 376 I.P.C., Police Station- Phasu, District- Bulandshahr. In the aforesaid F.I.R., applicant Hasmuddin has been nominated as solitary named accused.
The gravamen of the allegations made in the F.I.R. is to the effect that the prosecutrix alongwith her children was offered a tenanted house by the applicant in Pathan Tola and thereafter on the false promise of marriage, the applicant is alleged to have repeatedly dislodged the modesty of the prosecutrix by committing rape upon her.
Learned counsel for applicant contends that the prosecution story as unfolded in the F.I.R. is wholly false inasmuch as the prosecutrix is a married lady, which is clearly evident from the recital contained at page 35 of the case diary. It is then contended that there is nothing on record to show that the prosecutrix was divorced by her first husband. Therefore, during the subsistence of the first marriage, no second marriage could have been solemnized by the prosecutrix with the applicant. To buttress her submissions, she has relied upon the judgment of the Supreme Court in Naim Ahamed Vs. State (N.C.T. of Delhi); 2023 SCC OnLine SC 89. Even otherwise the applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit, except the present one. Applicant is in jail since 28.05.2023. As such, he has undergone one and a half months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has not yet been submitted. Investigation is now pending. However, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of investigation. He, therefore, submits that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the investigation/trial.
Per contra, the learned A.G.A. has opposed the present application for bail. However, he could not dislodge the factual/legal submissions urged by the learned counsel for applicant with reference to the record at this stage.
Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature, and gravity of offence as well as the complicity of applicant and considering the submissions urged by the learned counsel for applicant, as referred to above but without making any comment on the merits of the case applicant has made out a case for bail.
Accordingly the bail application is allowed.
Let the applicantHasmuddin, be released on bail in the aforesaid case crime number on 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/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) 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 THE HIM/HER IN ACCORDANCE WITH LAW.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 13.7.2023
Zafar
