Allahabad High Court
Izhar Khan vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 8 May, 2024
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:35570
Court No. - 13
Case :- CRIMINAL APPEAL No. - 3370 of 2023
Appellant :- Izhar Khan
Respondent :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another
Counsel for Appellant :- Saggir,Desh Deepak Singh,Sandeep Kumar Pal,Sanjay Singh Chauhan
Counsel for Respondent :- G.A.,Manish Kumar Gupta,Rajendra Prasad
Hon'ble Saurabh Lavania,J.
1. Rejoinder affidavit filed on behalf of the appellant in Court today are taken on record.
2. Heard Shri Sandeep Kumar Pal, learned counsel for the appellant, learned A.G.A. for the State as well as Shri Manish Kumar Gupta, learned counsel for the complainant and perused the record.
3. The present appeal has been filed under Section 14-A (2) of Scheduled Castes and Scheduled Tribes Act, 1989 against the impugned order dated 10.11.2023 passed by Special Judge, SC/ST Act, Lucknow in Bail Application No. 9016 of 2023, arising out of F.I.R/ Case Crime No. 169 of 2023, under Sections 419, 420, 376, 323, 342, 504, 506 I.P.C., and Section- 3(2)(v) of SC/ST Act, Police Station- Alambagh, District- Lucknow.
4. While pressing the present appeal counsel for the appellant submits that the case of the appellant is squarely covered by the judgment(s) of Hon'ble Apex Court rendered in the case of Deepak Gulati vs. State of Haryana (2013) 7 SCC 675; Sonu @ Subhash Kumar vs. State of U.P. and Another (2021) 7 SCC; and Mandar Deepak Pawar vs. State of Maharashtra and Another 2022 SCC OnLine SC 2110.
5. In continuation, counsel for the appellant submitted that the appellant, who is in jail since 14.09.2023 and has no previous criminal history, has been falsely implicated in the instant case and the entire story against the appellant, as indicated by the complainant, is false and concocted.
6. He submitted that if the fact that the appellant made physical relations with the victim is taken on its face value even then no offence would be made out against the appellant in view of the fact that the victim is a major and she was in faair with the appellant on her own free will.
7. He further submitted that as per the story of prosecution, the appellant hide his identity/ impersonated before the victim and made physical relations with her and if the story of prosecution regarding physical relations with victim is taken on its face value then it is improbable for a person to hide its identity for the reason that the informant after having the relationship of about five years failed to identify the religion of the appellant.
8. He further submitted that in fact, it is a case of consent and from the first day, the complainant/victim was well aware about the religion of the appellant and she, on her own volition/freewill, made physical relations prior to marriage and after marriage (nikkah) and out of wedlock, a male child was born on 04.01.2022. In proof thereof, he placed reliance on a copy of nikkahnama (Annexure No. 2 to the appeal) and a copy of the birth certificate of the child issued by Khamman Life Line Hospital, Azadpur, Inhauna, District - Amethi (Annexure No. 3 to the appeal) and also the photographs annexed with the rejoinder affidavit as Annexure No. 1.
9. He also stated that as per the observations made by Hon'ble Apex Court in the above referred judgments to attract the offence under Section 376 IPC, the allegation should be to the effect that from the inception, the consent by the victim is a result of a false promise to marry and from the F.I.R., it reflects that the said contents in its true spirit are missing.
10. He lastly submitted that all the aforesaid aspects of the case were not considered by the trial court, as such, the present appeal is liable to be allowed and the impugned order may be set aside and the appellant be enlarged on bail.
11. Learned A.G.A. for the State as well as Shri Manish Kumar Gupta, learned counsel for the complainant opposed the prayer for bail, however, he could not dispute the aforesaid contention of counsel for the appellant.
12. Considered the submissions advanced by the counsel for the appellant, learned A.G.A. for the State and all the relevant documents placed on record.
13. Upon due consideration of the facts and circumstances of the case, submissions of counsel for the appellant and learned A.G.A., F.I.R., impugned order, as also the observations made by Hon'ble Apex Court in the judgments, referred above, including that the appellant is in jail since 14.09.2023 and has no criminal history as also the photographs of the appellant with the victim and also that out of wedlock both have a male child as also the chances of conviction of the appellant in the instant case, this Court finds that the present appeal is liable to be allowed. Accordingly, it is allowed.
14. The order dated 10.11.2023 passed by Special Judge, SC/ST Act, Lucknow in Bail Application No. 9016 of 2023, arising out of F.I.R/ Case Crime No. 169 of 2023, under Sections 419, 420, 376, 323, 342, 504, 506 I.P.C., and Section- 3(2)(v) of SC/ST Act, Police Station- Alambagh, District- Lucknow, is hereby set aside.
15. Let appellant- Izhar Khan be released on bail in the aforesaid case crime number on his furnishing personal bond of Rs.25,000/- (Rupees Twenty Five Thousand Only) and two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following additional conditions :-
(i) The appellant shall cooperate with the prosecution during trial.
(ii) The appellant shall not tamper with the evidence during trial.
(iii) The appellant shall not pressurize/intimidate the prosecution witness(s).
(iv) The appellant shall not commit an offence.
(v) 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.
(vi) The appellant shall remain present before the trial court on each date fixed, either personally or through counsel.
(vii) The appellant shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court.
(viii) The appellant shall remain present, in person, before the trial court on the dates fixed for recording of statement under Section 313 Cr.P.C.
16. In case of default of above conditions, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law
17. As this order relates to enlargement of the appellant on bail, it is clarified that observation(s) made in this order shall have no bearing on the merits of the case and the trial court shall not be influenced by any observation(s) made in this order.
Order Date :- 8.5.2024/Mohit Singh/-
