Md. Tofik Alam vs The State Of Bihar
2021 Latest Caselaw 3509 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                CRIMINAL MISCELLANEOUS No.35522 of 2020
       Arising Out of PS. Case No.-288 Year-2019 Thana- BARARI District- Katihar
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Md. Tofik Alam, male, aged about 25 years, S/o Abdul Salam, resident of village- Marghia Nicha Tola, P.S.- Barari, District- Katihar

... ... Petitioner/s Versus The State of Bihar

... ... Opposite Party/s ====================================================== Appearance :

For the Petitioner/s     :        Mr. Raghib Ahsan, Senior Advocate with
                                  Mr. Bipin Kumar, Advocate
For the State            :        Mr. Md. Arif, APP

====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 20-07-2021

The matter has been heard via video conferencing.

2. Heard Mr. Raghib Ahsan, learned senior counsel

along with Mr. Bipin Kumar, learned counsel for the petitioner

and Mr. Md. Arif, learned Additional Public Prosecutor

(hereinafter referred to as the 'APP') for the State.

3. The petitioner apprehends arrest in connection with

Barari PS Case No. 288 of 2019 dated 11.09.2019, instituted

under Sections 341, 323, 376, 354, 504, 506, 120-B/34 of the

Indian Penal Code and 4 of the Protection of Children from

Sexual Offences Act, 2012.

4. The allegation against the petitioner is that he had

committed rape on the informant and thereafter he continued to

maintain physical relationship on the pretext that he would Patna High Court CR. MISC. No.35522 of 2020 dt.20-07-2021

marry her and later it is alleged that she had pain in stomach and

had gone to the father of the informant, who had inappropriately

touched her and told her that if she gets into physical

relationship with him then he would get her married to his son.

5. Learned counsel for the petitioner submitted that

only to exert pressure on the petitioner to marry her, this false

case has been lodged. It was submitted that it is unbelievable

that a father would tell a girl that if she gets into physical

relationship with him, he would get her married to his son.

Further, it was submitted that the medical report discloses that

she is 17-18 years old and not 16 years. Learned counsel

submitted that in the statement before the Court under Section

164 of the Code of Criminal Procedure, 1973 (hereinafter

referred to as the 'Code'), which was recorded on 16.09.2020,

she has stated that the petitioner again committed rape on her on

15.09.2019. It was submitted that such claim is falsified for the

reason that from 13.09.2019 to 16.09.2019, she was in the

police station in the custody of Mahila Police Constable, Neha

Kumari, and Mahila Chaukidaar, Taleshwari Devi, and thus,

there is no question of the petitioner committing rape on

15.09.2019. It was submitted that no date of even the Jalsa

meeting in which for the first time it is said that she was taken to Patna High Court CR. MISC. No.35522 of 2020 dt.20-07-2021

a field and raped by the petitioner has been mentioned. Learned

counsel submitted that even the allegation that she was in Jalsa

and was taken to a field by Sawana Khatoon and Tajkesh

Kahtoon where the petitioner was present and rape was

committed, is unbelievable for the reason that no such act would

be committed by any person in presence of his two sisters. It

was submitted that in the FIR, it has been stated that two sisters

of the petitioner had called her and had taken her to the field

where the petitioner was present whereas in her statement under

Section 161 of the Code, before the police she has stated that the

petitioner had taken her to the field on the pretext of introducing

her to his sisters where he had committed the crime. Learned

counsel submitted that in the statement under Section 164 of the

Code also she had stated that the petitioner had taken her to the

field where his two sisters were present and thereafter she had

stated on 15.09.2020 that she was again raped in the Madrasa.

Thus, it was submitted that there is enough discrepancy in the

statements of the informant to indicate the falsity of the

allegation and most importantly with regard to the allegation

that the petitioner again committed rape on her on 15.09.2019;

during such period she was in the custody of two female

constables at the police station. It was submitted that the Patna High Court CR. MISC. No.35522 of 2020 dt.20-07-2021

petitioner has been falsely implicated only to exert pressure for

marriage and that he has no other criminal antecedent.

6. Learned APP, from the case diary, did not dispute

the fact that the FIR version is that the sisters of the petitioner

had called the informant to the field whereas in the statement

under Sections 161 and 164 of the Code she has stated that the

petitioner had taken her to the field. It was also not controverted

that as per the statements, rape was committed on the informant

by the petitioner in the presence of his sisters and further that

she was in the custody of two female constables from

13.09.2019 to 16.09.2019 when she was taken to the Court for

getting her statement recorded under Section 164 of the Code.

7. Having considered the facts and circumstances of

the case and submissions of learned counsel for the parties, in

the event of arrest or surrender before the Court below within

six weeks from today, the petitioner be released on bail upon

furnishing bail bonds of Rs. 25,000/- (twenty five thousand)

with two sureties of the like amount each to the satisfaction of

the learned Chief Judicial Magistrate, Katihar in Barari PS Case

No. 288 of 2019, subject to the conditions laid down in Section

438(2) of the Code and further (i) that one of the bailors shall be

a close relative of the petitioner, (ii) that the petitioner and the Patna High Court CR. MISC. No.35522 of 2020 dt.20-07-2021

bailors shall execute bond and give undertaking with regard to

good behaviour of the petitioner, and (iii) that the petitioner

shall cooperate with the Court and police/prosecution. Any

violation of the terms and conditions of the bonds or the

undertaking or non-cooperation shall lead to cancellation of his

bail bonds.

8. It shall also be open for the prosecution to bring any

violation of the foregoing conditions of bail by the petitioner, to

the notice of the Court concerned, which shall take immediate

action on the same after giving opportunity of hearing to the

petitioner.

                     9.    The     petition       stands    disposed      off   in   the

           aforementioned terms.


                                              (Ahsanuddin Amanullah, J)


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