Kamruddin vs State Of U.P. And 3 Others
2023 Latest Caselaw 25275 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:181133
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36900 of 2023
 

 
Applicant :- Kamruddin
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Adil Khan
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Adil Khan, the learned counsel for applicant and the learned A.G.A. for State.

2. Perused the record.

3. This application for bail has been filed by applicant-Kamruddin, seeking his enlargement on bail in Case Crime No. 113 of 2023, under Sections 376D, 506 IPC and Sections 5/6 POCSO Act, Police Station-Amroha Dehat, District-Amroha during the pendency of trial.

4. At the very outset, the learned A.G.A. submits that notice has been served upon first informant-opposite party 2. However, in spite of service of notice, no one has put in appearance on behalf of opposite party 2 to oppose this application for bail.

5. Record shows that in respect of an incident, which is alleged to have occurred on 21.02.2023, a delayed FIR dated 19.03.2023 was lodged by the prosecutrix namely-X and was registered as Case Crime No. 113 of 2023, under Sections 376D, 506 IPC, Sections 3/4 POCSO Act and Sections 67a IT Act, Police Station-Amroha Dehat, District-Amroha. In the aforesaid FIR, 3 persons namely - (1) Kamruddin (applicant herein), (2) Sahanabaj and (3) Altaf have been nominated as named accused.

6. At the very outset, the learned counsel for applicant submits that though applicant is a named and charge sheeted accused inasmuch as, the charge sheet has been submitted against applicant and other co-accused on 17.05.2023 yet the applicant is liable to be enlarged on bail. Co-accused Sahanabaz has already been enlarged on bail by this Court vide order dated 19.07.2023 passed in Criminal Misc. Bail Application No. 25473 of 2023 (Sahanabaz Vs. State of U.P. and 3 Others). For ready reference, the order dated 19.07.2023 is extracted hereinunder:-

"List has been revised.

Counter affidavit filed today is taken on record.

Heard Sri Adil Khan, learned counsel for the applicant; learned AGA for the State and perused the material placed on record.

The instant bail application has been filed on behalf of the applicant, Sahanabaz, with a prayer to release him on bail in Case Crime No. 113 of 2023, under Sections 376-D, 506 IPC and 5/6 POCSO Act, Police Station Amroha Dehat, District- Amroha, during pendency of trial.

There are allegations against the applicant alongwith two co-accused persons of abduction of two minor girls with intent to marry, commission of offence of gang rape, threatening and penetrative sexual assault.

Learned counsel for the applicant has submitted that one of the girl is aged about 16-17 years and other is aged about 19 years. Both have gone to Hotel with the applicants, where there is entry in the register together. From the statements of both the victims under Section 164 Cr.P.C., it appears that they are consenting party. They have voluntarily entered into physical relationship. The victims well knew the boys. The applicant has been falsely implicated in this case. He has no criminal history to his credit and is languishing in jail since 21.3.2023. In case, the applicant is released on bail, he will not misuse the liberty of bail.

Per contra learned A.G.A. has opposed the prayer for bail of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserves any indulgence. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail.

Having considered the submissions of the parties noted above, finding force in the submissions made by the learned counsel for the applicant; keeping in view uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under-trial having fundamental right to speedy; larger mandate of the Article 21 of the Constitution of India, considering the dictum of Apex Court in the case of Satendra Kumar Antil Vs. C.B.I. & Another, passed in S.L.P.(Crl.) No. 5191 of 2021, judgement dated 11.7.2022 and considering 5-6 times overcrowding in jails over and above their capacity by under trials and without expressing any opinion on the merits of the case, let the applicant involved in the aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions that :-

(i) The applicant shall not tamper with the evidence or threaten the witnesses.

(ii) 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.

(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.

(iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail 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.

(v) 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.

In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.

Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted."

7. It is then contended that another co-accused Altaf has also been enlarged on bail by this Court vide order dated 19.07.2023 passed in Criminal Misc. Bail Application No. 25120 of 2023 (Altaf Vs. State of U.P. and 3 Others). For ready reference, the same is extracted hereinunder:-

"1. Heard Sri Adil Khan, learned counsel for the applicant, learned A.G.A for the State, Sri Sandeep Kumar Srivastava, learned counsel for the first informant and perused the record.

2. One of the the victim is the informant and another victim is her relative, hereafter to be referred to as "A" and "B". The prosecution story in brief is that "A" and "B" are student of B.A. Ist and the co-accused, Qamruddin and Shahnawaz, who are their neighbours, whereas the accused-applicant is the Devar of sister of co-accused Qamruddin. On 21.02.2023, when "A" and "B" were waiting for the conveyance to their College, the applicant and co-accused on the pretext of dropping them to the college, took them on a motor cycle but had gone to market, where they ate Rasmalai and after eating, they became unconscious and the accused applicant taken them to OYO hotel and all of them had committed wrong them and took their photograph and video.

3. Learned counsel for the applicant submits that the "A" and "B" are major and are pursuing their B.A. Ist year degree course. Learned counsel further submits that the incident is alleged to have taken place on 21.02.2023 whereas, F.I.R. has been lodged on 19.03.2023 without there being any plausible explanation of such an inordinate delay. He further submits that "A" and "B" are major according to the certificate-cum-marksheet, copy of which is annexed as Annexure-6 to the affidavit accompanying the bail application. Learned counsel has further argued that the medical examination does not corroborate with the prosecution version and therefore, no offence against the applicant is made out. It has also been argued that the applicant has been implicated merely on the ground that he is relative of co-accused Qamruddin and has no concern with the incident. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been mentioned. It has also been assured on behalf of the applicant 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. He next submits that applicant is languishing in jail since 21.03.2023 having no criminal history.

3. Per contra, learned A.G.A. has opposed the prayer for bail of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserve any indulgence. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail.

4. Considering the entire facts and circumstances of the case, submissions of learned counsel for the parties, nature of evidence, and all attending facts and circumstances of the case, without expressing any opinion on merits of the case, this Court is of the view that the applicant has made out a case for bail. Hence the bail application is allowed.

5. Let applicant Altaf involved in Case Crime No.113 of 2023 under Sections 376-D, 506 I.P.C., and Section 5/6 of POCSO Act, Police Station Amroha Dehat, District Amroha, be released on bail on furnishing a personal bond and two heavy local sureties each of the like amount to the satisfaction of the court concerned subject to 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 and 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 him under Section 229-A of the Indian Penal Code.

III. In case, the applicant misuses the liberty of bail 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

6. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted."

8. On the above premise, the learned counsel for applicant submits that case of the present applicant is similar and identical to that of co-accused Sahanabaz and Altaf, who have already been enlarged on bail. There is no such distinguishing feature on the basis of which, the case of present applicant could be so distinguished from aforementioned co-accused so as to deny him bail. He, therefore, submits that in view of above and for the facts and reasons recorded in the bail orders of aforementioned co-accused, applicant is also liable to be enlarged on bail on the ground of parity.

9. According to the learned counsel for applicant, the prosecutrix namely Ravina has deposed before court below as PW-1 but she has not supported the FIR. The prosecutrix in her statement before court below has completely pleaded ignorance and has therefore, been declared hostile. He, therefore, contends that once the prosecutrix has herself not supported the FIR, therefore, no useful purpose shall be served in prolonging the custodial arrest of applicant.

10. Applicant has one criminal history to his credit, however, the same has been sufficiently explained in paragraph 18 of the affidavit filed in support of bail application. Applicant is in jail since 21.03.2023. As such, he has undergone more than 6 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. On the above premise, it is thus urged by the learned counsel for applicant 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 trial.

11. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. Criminality committed by named/charge sheeted accused is joint and common. As such, the same is incapable of separation or segregation. As a result, no exception can be carved out in the case of present applicant. It is thus contended by the learned A.G.A. that no sympathy be shown by this Court in favour of applicant. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

12. Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of accused coupled with the fact that similarly situate and circumstance co-accused Sahanabaz and Altaf have already been enlarged on bail by this Court, the learned A.G.A. could not point out any such circumstance from the record distinguishing the case of present applicant from bailed out co-accused Sahanabaz and Altaf so as to deny bail to the present applicant, the prosecutrix has not supported the FIR in her deposition before court below and consequently, she has been declared hostile, the clean antecedents of applicant, the period of incarceration undergone, and in spite of the fact that the police report in terms of Section 173(2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet the learned A.G.A. could not point out from the record any such circumstance necessitating the custodial arrest of applicant during the pendency of trial, the explained criminal history of the applicant, the period of incarceration undergone, the judgment of the Supreme Court in Brijmani Devi Vs. Pappu Kumar and Anohter, (2022) 4 SCC 497, but without making any comments on the merits of the case, applicant has made out a case for bail.

13. Accordingly, the bail application is allowed.

14. Let the applicant-Kamruddin, be released on bail in the aforesaid case crime number on his 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.

15. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his 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 :- 19.9.2023

Vinay