Mohd. Anees Alias Anil vs State Of U.P Thru. Addl. Chief ...
2023 Latest Caselaw 17538 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 



 
Neutral Citation No. - 2023:AHC-LKO:46550
 
Court No. - 15
 

 
Case :- CRIMINAL APPEAL No. - 110 of 2022
 
Appellant :- Mohd. Anees Alias Anil
 
Respondent :- State Of U.P Thru. Addl. Chief Secy. Home And And Another
 
Counsel for Appellant :- Sushil Kumar Singh,Farooq Ayoob
 
Counsel for Respondent :- G.A.,Maheep Kumar Singh,Upendra Prakash Pathak
 

 
Hon'ble Shamim Ahmed,J.

1. Heard Shri Farooq Ayoob, the learned counsel for the appellant as well as Shri Upendra Prakash Pathak, learned counsel for the opposite party No.2 and Sri Ashok Kumar Srivastava, the learned A.G.A. for the State-opposite party No. 1 and perused the entire record.

2. Learned A.G.A. has already filed counter affidavit.

3. Sri Upendra Prakash Pathak, learned counsel for the opposite party No.2 was given several time by this Court for filing counter affidavit, but he has not filed counter affidavit. When the court asked, whether he is interested to file counter affidavit or not ? He submits that he is not interested to file any counter affidavit in this case and he will argue the case in absence of the counter affidavit.

4. In the above circumstances, as the matter pertains to bail this Court has no option but to proceed for final arguments to decide the present appeal.

5. The present criminal appeal under Section 14-A (2) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 20.12.2021 passed by the Special Judge S.C. and S.T.Act, Barabanki in Bail Application No. 2931/2021 (Mohd. Anees @ Anil Vs. State of U.P.), arising out of Case Crime No. 304 of 2021, under Sections 376, 328, 506 I.P.C. and Section 3 (2) (v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act relating to Police Station-Ramsanehi Ghat, Barabanki, whereby the bail application of the appellant has been rejected.

6. Learned counsel for the appellant submits that the appellant is innocent and has been falsely implicated in the present case due to enmity and village party bandi. The entire prosecution story as alleged by the prosecutrix in the F.I.R. as well as in the statement recorded under Section 161 Cr.P.C. and 164 Cr.P.C. is false and fabricated and stated with the intention to defame the image of the appellant and his entire family in the society. No such incident took place as alleged by the prosecutrix.

7. Learned counsel for the appellant further submits that as per version of the F.I.R. the incident took place, as per prosecutrix in the month of December, 2019 and the first time the prosecutrix moved an application before the Superintendent of Police on 30.06.2021 for lodging of the F.I.R. and thereafter on 16.07.2021 to the Director General of Police (U.P.), Lucknow and when the said application was not entertained by the authorities concerned, she filed an application under Section 156 (3) Cr.P.C. before the competent court for lodging of the F.I.R., thereafter the present F.I.R. has been lodged, which is nothing but an abuse of process of law and there is much delay in lodging of the F.I.R.. He further submits that initially the F.I.R. was lodged by the prosecutrix under Sections 376-D, 328 and 506 I.P.C. against three persons, two named persons and two unknown persons, in which the name of the appellant was also mentioned.

8. Learned counsel for the appellant further submits that the Investigating Officer during investigating dropped the name of one other accused person and two unknown persons and submitted charge-sheet only against the applicant under Section 376, 328, 506 I.P.C. and Section 3 (2) (v) S.C./S.T. Act. He further submits that the names of other accused persons against whom the same allegation was levelled by the prosecutrix were dropped that also falsify the entire prosecution story.

9. Learned counsel for the appellant further submits that there is a vast contradiction in the statement of the prosecutrix recorded under Section 161 and 164 Cr.P.C as well as in the version of the F.I.R. He further submits that the allegation of rape, as levelled by the prosecutrix against the appellant got demolished after perusal of the medical report wherein the Doctor in his report has clearly opined that all blood reports are normal and Urine Pregnancy Test came negative and as per pathology report Vaginal smear slide are negative for spermatozoa and gonococci. The hymen is old, torn and healed. The doctor has also opined that there is neither external or internal injury found on the private parts of the prosecutrix. The prosecutrix is aged about 25 years, thus she is major. He further submits that the parties appears to be consenting parties and only with the shame of the society, when the prosecutrix was caught with the appellant, she falsely implicate the appellant in the present case on the pressure created by her husband. Learned counsel for the appellant further submits that the statement of the husband of the prosecutrix was recorded under Section 161 Cr.P.C. in which he has clearly stated that whatsoever statement has been made regarding staying in hotel, regarding commission of rape and change of religion, all have been stated on the advice given by the counsel. Thus, the statement given by the husband of the prosecutrix also falsify the entire prosecution case.

10. Learned counsel for the appellant further submits that accused/appellant is languishing in jail since 28.10.2021, who has no previous criminal history, and in case the appellant is enlarged on bail, he shall not misuse the liberty of bail and he shall also fully cooperate with the trial. He has further submitted that there is no possibility of the appellant to intimidate or pressurize the witnesses or any other persons acquainted with the facts of the present case.

11. Learned counsel for the applicant further submits that the applicant is in jail since 28.10.2021 and has by now done a substantial period of incarceration. In support of his argument, he has placed reliance of Hon'ble Apex Court judgment in the case of Kamal Vs. State of Haryana, 2004 (13) SCC 526 and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under :-

"2. This is a case in which the appellant has been convicted u/s 304-B of the India Penal Code and sentenced to imprisonment for 7 years. It appears that so far the appellant has undergone imprisonment for about 2 years and four months. The High Court declined to grant bail pending disposal of the appeal before it. We are of the view that the bail should have been granted by the High Court, especially having regard to the fact that the appellant has already served a substantial period of the sentence. In the circumstances, we direct that the bail be granted to the appellant on conditions as may be imposed by the District and Sessions Judge, Faridabad."

12. Learned counsel for the applicant has also placed reliance of Hon'ble Apex Court judgment in the case of Takht Singh Vs. State of Madhya Pradesh, 2001 (10) SCC 463, and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under:-

"2. The appellants have been convicted under Section 302/149, Indian Penal Code by the learned Sessions Judge and have been sentenced to imprisonment for life. Against the said conviction and sentence their appeal to the High Court is pending. Before the High Court application for suspension of sentence and bail was filed but the High Court rejected that prayer indicating therein that the applicants can renew their prayer for bail after one year. After the expiry of one year the second application was filed but the same has been rejected by the impugned order. It is submitted that the appellants are already in jail for over 3 years and 3 months. There is no possibility of early hearing of the appeal in the High Court. In the aforesaid circumstances the applicants be released on bail to the satisfaction of the learned Chief Judicial Magistrate, Sehore. The appeal is disposed of accordingly."

13. Learned counsel for the appellant further submits that ratio of law applicable in above those cases is also applicable in the case of the appellant, therefore, the instant criminal appeal deserves to be allowed and the order dated 20.12.2021 passed by the Special Judge S.C. and S.T.Act, Barabanki in Bail Application No. 2931/2021 (Mohd. Anees @ Anil Vs. State of U.P.), arising out of Case Crime No. 304 of 2021, under Sections 376, 328, 506 I.P.C. and Section 3 (2) (v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act relating to Police Station-Ramsanehi Ghat, Barabanki, deserve to be set aside and consequently, the accused/appellant deserves to be enlarged on bail during pendency of the trial.

14. Several other submissions in order to demonstrate the falsity of the allegations made against the appellant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the appellant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that the accused is not having any criminal history and he is in jail since 28.10.2021 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

15. Learned counsel for the appellant has drawn attention of this Court towards the judgment of the Hon'ble Apex Court in the case of Hitesh Verma Vs. The State of Uttrakhand reported in (2020) 10 SCC,wherein in para 15 relying on the judgment passed in Swaran Singh and others Vs. State (2008) 8SCC 435 has held as under:

"as per the F.I.R., the allegations of abusing the informant were within the four walls of her building. It is not the case of the informant that there was any member of the public (nor merely relatives or friends) at the time of the incident in the house. Therefore, the basic ingredient that the words were uttered in any place within public view is not made out. In the list of witnesses appended to the charge-sheet, certain witnesses are named but it could not be said that those were the persons present within the four walls of the building. The offence is alleged to have taken place within the four walls of the building. Therefore, in view of the judgment of this Court in Swaran Singh, it cannot be said to be a place within public view as none was said of be present within the four walls of the building as per the FIR and/or charge-sheet."

16. Learned counsel for the appellant further submits that from the averments made in the F.I.R. and also from perusal of the statement no ingredients under Section 3 (2) (v) SC/ST Act is attracted against the appellant, as the incident, as per prosecutrix happens in a room and no at a public place or public view.

17. Per contra, Shri Upendra Prakash Pathak, learned counsel for the opposite party No.2 has vehemently opposed the prayer and submits that his client does not propose to file any counter affidavit, but he will argue the matter in absence of the counter affidavit and submits that as the prosecutrix has supported the version of the F.I.R. in her statement recorded under Section 161 and Section 164 Cr.P.C. and has levelled the allegation of rape. Therefore, the accused/ appellant is not entitled to be enlarged on bail and the instant criminal appeal deserves to be dismissed. Sri Ashok Kumar Srivastava, learned A.G.A. also supported the argument of learned counsel for the opposite party No.2.

18. After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, unlikelihood of early conclusion of trial and also in absence of any convincing material to indicate the possibility of tampering with the evidence and considering the fact that the allegation of rape, as levelled by the prosecutrix against the appellant got demolished after perusal of the medical report wherein the Doctor in his report has clearly opined that all blood reports are normal and Urine Pregnancy Test came negative and as per pathology report Vaginal smear slide are negative for spermatozoa and gonococci. The doctor has also opined that there is neither external or internal injury found on the private parts of the prosecutrix. The prosecutrix is aged about 25 years, thus she is major, thus the parties appears to be consenting parties and also considering that the statement of the husband of the prosecutrix was recorded under Section 161 Cr.P.C. in which he has clearly stated that whatsoever statement has been made regarding staying in hotel, regarding commission of rape and change of religion, all have been stated on the advice given by the counsel and further considering the fact that appellant is in jail since 28.10.2021 and has now by done a substantial period of detention and further considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the case of Kamal (supra), Takht Singh (supra), and Dataram Singh vs. State of U.P. and another, reported in (2018) 3 SCC 22, Hitesh Verma (supra), this Court is of the view that the learned court below has failed to appreciate the material available on record, the impugned order passed by the trial court is liable to be set aside.

19. Accordingly, the appeal is allowed. Consequently, the order dated 20.12.2021 passed by the Special Judge S.C. and S.T.Act, Barabanki in Bail Application No. 2931/2021 (Mohd. Anees @ Anil Vs. State of U.P.), arising out of Case Crime No. 304 of 2021, under Sections 376, 328, 506 I.P.C. and Section 3 (2) (v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act relating to Police Station-Ramsanehi Ghat, Barabanki is hereby reversed and set aside.

20. Let the appellant, Mohd. Anees @ Anil, be enlarged on bail in Case Crime No. 304 of 2021, under Sections 376, 328, 506 I.P.C. and Section 3 (2) (v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act relating to Police Station-Ramsanehi Ghat, Barabanki with the following conditions:-

(i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned.

(ii) The appellant shall appear and strictly comply following terms of bond executed under section 437 sub section 3 of Chapter- 33 of Cr.P.C.:-

(a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter.

(b) The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) The appellant 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.

(iii) The appellant shall cooperate with investigation /trial.

(iv) The appellant 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.

(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(vi) In case, the appellant misuses the liberty of bail during trial, in order to secure his presence, proclamation under section 82 Cr.P.C. is issued and the appellant 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.

(vii) The appellant shall remain present, 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 appellant 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.

21. The trial court is also directed to expedite the trial of the aforesaid case, within a period of one year from today, by following the provisions of Section 309 Cr.P.C., strictly without granting any unnecessary adjournments to the parties, in case there is no other legal impediment.

Order Date :- 17.07.2023

Arvind