Mohammad Samar vs State Of U.P. Thru. Addl. Chief ...
2023 Latest Caselaw 18667 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:48444
 
Court No. - 15
 

 
Case :- CRIMINAL APPEAL No. - 886 of 2023
 

 
Appellant :- Mohammad Samar
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Home Lko. And 2 Others
 
Counsel for Appellant :- Kunwar Ravi Prakash
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Shamim Ahmed,J.

Heard Sri Kunwar Ravi Prakash, learned counsel for the appellant, Ms. Shikha Sinha, learned A.G.A. for the State and perused the entire record.

Learned A.G.A. for the State has already filed counter affidavit. Rejoinder affidavit filed today in the Court is taken on record.

This Criminal Appeal under Section 14-A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 04.03.2023 passed by learned Special Additional Sessions Judge (S.C./S.T. Act), Lucknow in Case Crime No.575 of 2022, under Sections 363, 366 I.P.C. and Section 3(2)(V) S.C./S.T. Act, Police Station Sarojni Nagar, District Lucknow, whereby the bail application of the appellant has been rejected.

In spite of service of notice upon opposite party nos.2 and 3 vide office report dated 29.04.2023, no counter affidavit has been filed nor any counsel has appeared on behalf of them, as such, it appears that they are not interested to contest this case.

Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case due to enmity and village rivalry. No such incident, as alleged by the prosecution, took place. The instant F.I.R. has been lodged with ulterior motive with intention to defame the image of the appellant as well as his family members in the entire society. As per the case set up by the prosecution, the appellant enticed the prosecutrix and took her away alongwith him. However, when the statements of the prosecutrix were recorded under Sections 161 and 164 Cr.P.C., she clearly stated that she went on her own sweet will and when she got information about the lodging of instant case, she came back. No allegations of rape has been assigned upon the appellant either in the F.I.R. or in the statements of the prosecutrix. The prosecutrix has denied to undergo medical test. The prosecutrix is stated to be of 16 years and taking the benefit of two years either side, she appears to be major.

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 08.12.2022 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

Learned A.G.A. opposed the prayer for bail, however, he is unable to dispute the contentions raised by learned counsel for the appellant.

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, the unlikelihood of early conclusion of trial and also in the absence of any convincing material to indicate the possibility of tampering with the evidence and considering the statements of the prosecutrix recorded under Sections 161 and 164 Cr.P.C. wherein she has stated that she went on her own sweet will even no allegation of rape has been assigned upon the appellant and she refused to undergo medical test and also considering the fact that she is aged about 16 years and taking the benefit of two years either side, she appears to be major 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 Dataram Singh vs. State of UP and another, reported in (2018) 3 SCC 22, this Court is of the view that the learned court below has failed to appreciate the material available on record. The order passed by the court below is liable to be set aside.

Accordingly, the appeal is allowed. Consequently, the impugned judgment and order dated 04.03.2023 passed by learned Special Additional Sessions Judge (S.C./S.T. Act), Lucknow in Case Crime No.575 of 2022, under Sections 363, 366 I.P.C. and Section 3(2)(V) S.C./S.T. Act, Police Station Sarojni Nagar, District Lucknow is hereby set aside and reversed.

Let the appellant, Mohammad Samar be released on bail in the Case Crime No.575 of 2022, under Sections 363, 366 I.P.C. and Section 3(2)(V) S.C./S.T. Act, Police Station Sarojni Nagar, District Lucknow 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.

(viii) The trial court is also directed to expedite the trial of the aforesaid case 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 :- 24.7.2023

Saurabh