Allahabad High Court
Mohd. Raza Alias Ayan vs State Of U.P. Thru Prin.Secy. Home on 6 October, 2023
Bench: Brij Raj Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:64529
Court No. - 27
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 15332 of 2022
Applicant :- Mohd. Raza Alias Ayan
Opposite Party :- State Of U.P. Thru Prin.Secy. Home
Counsel for Applicant :- Ankit Kumar Singh,Shailesh Verma,Swati Upadhyay
Counsel for Opposite Party :- G.A.
Hon'ble Brij Raj Singh,J.
1. Supplementary affidavit filed by learned counsel for applicant is taken on record.
2. Heard Shri Ankit Kumar Singh, learned counsel for the accused-applicant as well as Rani Singh, Brief Holder of Rajesh Kumar Singh, learned A.G.A.-I for the State and perused the record.
3. This bail application has been filed seeking release of the accused/applicant Mohd. Raza Alias Ayan on bail, who is involved in Case Crime No. 0150 of 2022 under Sections 366, 376, 506 I.P.C, Police Station Bazar Khala, District Lucknow.
4. In pursuance of the earlier order of this Court, the compliance report has been filed by learned counsel for applicant and the applicant has surrendered before the Court below on 04.10.2023.
5. This Court had earlier granted interim bail to the applicant vide order dated 03.05.2023 and after looking into the entire facts, the Court came to the conclusion that it is a case of consent and the applicant had given statement that he wanted to marry the prosecutrix. After the interim bail, the applicant tried to settle the dispute and wanted to marry the prosecutrix but the marriage could not be solemnised.
6. Learned counsel for the applicant has invited attention of the Court towards the statement of prosecutrix which has been recorded before the trial Court, wherein she has deposed that she was in love with the applicant and wanted to marry him. She further deposed that there was physical relation between the applicant and the prosecutrix and as a result of that, she became pregnant and had pregnancy of one and a half months, which was aborted by her at the behest of the applicant. The later part of the statement under Section 164 Cr.P.C. indicates that the prosecutrix has deposed that the applicant had refused to marry the prosecutrix that is why the F.I.R. was lodged and allegation of rape was levelled against the applicant.
7. Learned counsel for the applicant submitted that in the cross-examination, the prosecutrix has specifically stated that now she is not in love with the applicant and does not want to marry him. He further submitted that even on the false pretext, if a physical relation is established between two adults, the case does not come within the purview of rape. It is apparent that the prosecutrix was major at the time of incident and whatever physical relation was established, was between two consenting adults, who were in love, therefore, the case is not coming under the purview of Section 375 I.P.C. Learned counsel for applicant has relied on the judgment of Hon'ble Supreme Court in Sonu alias Subhash Kumar versus State of U.P. AIR Online 2021 SC 120.
8. Learned counsel for the applicant further submitted that after looking into the statement of P.W.1., it is clear that she is not ready to marry the applicant but the the applicant is ready to marry the prosecutrix, therefore he must not suffer. He further stated that there is no previous criminal history of the applicant and he is languishing in jail since 11.10.2022.
9. Learned A.G.A has opposed the prayer of bail of the applicant and has submitted that the statement of P.W.-1 indicates that on the pretext of marriage, physical relation was established, therefore, it is coming within the purview of rape. However, A.G.A could not dispute the fact that the prosecutrix deposed before the Court that she was in love with the applicant and physical relation was established out of her free will.
10. Considering the facts and circumstances of the case, perusing the record, also considering the nature of allegations, arguments advanced by the learned counsel for the parties, the argument that statement of prosecutrix before the trial Court does not indicate that rape was committed by the applicant, the argument that it is a case of consent between the two adults, the argument that the prosecutrix has refused to marry the applicant though the applicant is ready to marry the prosecutrix, I find it to be a fit case for grant of bail.
11. Accordingly, the bail application is allowed.
12. Let the applicant Mohd. Raza Alias Ayan be released on bail in the above case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of Court concerned with the following conditions :-
(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 her 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.
13. It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The Trial Court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything in this order.
Order Date :- 6.10.2023
DiVYa
