Muslim vs State Of U.P. Thru. Prin. Secy. Home Lko. ...
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Allahabad High Court

Muslim vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 23 July, 2025

Author: Rajesh Singh Chauhan

Bench: Rajesh Singh Chauhan

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2025:AHC-LKO:42298
 
Court No. - 11
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12493 of 2024
 

 
Applicant :- Muslim
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And 3 Others
 
Counsel for Applicant :- Dharm Trivedi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajesh Singh Chauhan,J.
 

1. Heard Sri Dharm Trivedi, learned counsel for the applicant and Sri Ranvijay Singh,, learned AGA for the State.

2. Despite service of notice upon opposite party No.2, no one has appeared nor any request for adjournment has been made.

3. As per learned counsel for the applicant, the present applicant is in jail since 14.08.2019 in Case Crime No.0392 of 2019 under Sections 376, 452 I.P.C., Section 5m/6 POCSO Act and Section 3(2)5 of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, Police Station- Dhaurahra, District- Lakhimpur Kheri. He has been falsely implicated in this case as he has not committed any offence as alleged in the prosecution story.

4. At the very outset, learned counsel for the applicant has stated that the earlier counsel has filed a Criminal Appeal bearing No. 2029/2023, Muslim vs. State of U.P. and another in the same case having impression that since the provisions of SC/ST Act are involved therefore he should file appeal and that appeal has been rejected by this Court vide order dated 31.07.2023. In the aforesaid order, case crime number has been wrongly indicated inasmuch the case crime number of this case is 392/2019, wherein, in the aforesaid order case crime number has been indicated as 302/2019. The applicant has also submitted that the earlier counsel has not filed any application for correction of case crime number.

5. He has submitted that since the provisions of POCSO Act are involved in this case therefore instead of filing criminal appeal, the bail application should be filed, therefore this bail application has been filed and the same may be treated as first bail application.

6. Attention has been drawn towards the impugned FIR wherein the allegation of rape and offence of POCSO Act has been alleged and the age of the prosecutrix has been indicated as seven and half years. As per prosecution story, so narrated in the FIR as well as the statement of the prosecutrix, the present applicant could not execute the penetrative sex with the prosecutrix, however, he committed those offences which are covered under Sections 5m and 6 of POCSO Act, besides the other offences under section of IPC and SC/ST Act.

7. Further attention has been drawn towards the medical examination report of the prosecutrix, which shows that her hymen is intact and as per medical opinion of the doctor there is no sign of use of force. Learned counsel for the applicant has further submitted that seven prosecution witnesses have been examined and as per the trial status report dated 16.12.2024, the Investigating Officer- PW-7 has been examined and the next date was fixed for 20.12.2024 for his cross examination, therefore, keeping in a view the pace of trial, there is no likelihood to conclude the trial in near future.

8. Learned AGA has informed on the basis of instructions that the aforesaid Investigating Officer has been cross examined.

9. As per Sri Trivedi, all fact/relevant witnesses including the star witness i.e. victim has been examined, therefore, the present applicant if released on bail, may not be able to influence the witness or tamper the evidence. Therefore, considering the total period of incarceration in jail i.e. more than six years and the fact that all fact, relevant and star witnesses have been examined, the present applicant may be enlarged on bail. Sri Trivedi has stated that the present applicant is having no prior criminal history of any kind whatsoever.

10. Learned counsel for the applicant has referred the dictum of the Apex Court in re; Gokarakonda Naga Saibaba v. State of Maharashtra, (2018) 12 SCC 505, wherein it has been held that if all fact/ material witnesses have been examined, the bail application of the accused may be considered. Besides, he has relied upon the judgments of the Apex Court in re; Union of India vs. K.A. Najeeb reported in AIR 2021 Supreme Court 712 and Paras Ram Vishnoi vs. The Director, Central Bureau of Investigation passed in Criminal Appeal No. 693 of 2021 (Arising out of SLP (Crl) No.3610 of 2020), wherein the Apex Court has held that if there is no possibility to conclude the trial in near future and the accused applicant is in jail for a substantial period then the period of incarceration may be considered as a fresh ground. Learned counsel has submitted that in the present case, all fact/ relevant and star witnesses have been examined, therefore, the present applicant may be enlarged on bail. He has further submitted that the present applicant undertakes that he shall co-operate in the trial proceedings and shall not misuse the liberty of bail, if so granted by this Court. Further, the applicant shall abide by all terms and conditions of the bail order.

11. Learned AGA has however opposed the aforesaid bail application but he did not dispute the aforesaid facts.

12. Without entering into merits of the issue; considering the arguments of learned counsel for the parties; present applicant is having no criminal history of any kind whatsoever, seven prosecution witnesses have been examined and as per the trial status report dated 16.12.2024, the Investigating Officer- PW-7 has been examined and the next date was fixed for 20.12.2024 for his cross examination, all fact, relevant and star witnesses have been examined, therefore, keeping in a view the pace of trial, there is no likelihood to conclude the trial in near future, considering the dictum of the Apex Court in re; Gokarakonda Naga Saibaba (supra), K.A. Najeeb (supra) and Paras Ram Vishnoi (supra), considering the period of incarceration of the present applicant i.e. more than six years, considering the undertaking that applicant shall co-operate in the trial proceedings, shall not misuse the liberty of bail and shall abide by all terms and conditions of the bail order, I find it appropriate to release the applicant on bail.

13. Accordingly, the bail application is allowed.

14. Let applicant- (Muslim) 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:-

(i) The applicant shall appear before the Investigating Officer to cooperate in the investigation and shall further remain present to cooperate in the investigation as and when the Investigating Team calls him to appear and if the charge-sheet is filed against him he shall cooperate in the trial proceedings properly and shall file an undertaking to the effect that they 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 him under Section 229-A IPC/269 of the B.N.S., 2023.

(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./84 of B.N.S.S., 2023 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 IPC/208 of the B.N.S., 2023.

(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./351 of B.N.S.S., 2023. 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. The present applicants shall not leave the country without prior permission of the Court.

15. Before parting with, learned trial court is directed to expedite the trial invoking the provisions of Section 309 Cr.P.C./346 B.N.S.S. without giving any unnecessary adjournment to any of the parties, fixing short date, if possible, on day to day basis and if any of the parties does not cooperate in the trial court proceedings properly, any appropriate coercive steps may be taken by the trial court strictly in accordance with law.

Order Date :- 23.7.2025

Reena/-

(Rajesh Singh Chauhan,J.)