Allahabad High Court
Shahzad vs State Of U.P. And 3 Others on 7 April, 2023
Author: Krishan Pahal
Bench: Krishan Pahal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 79 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14424 of 2023 Applicant :- Shahzad Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Jitendra Kumar Shishodia,Gyan Chandra Counsel for Opposite Party :- G.A.,Mayank Yadav,Vivek Kumar Singh Hon'ble Krishan Pahal,J.
1. List has been revised.
2. Heard Shri Jitendra Kumar Shishodia, learned counsel for the applicant and Ms. Sindhuja Rathi Bhargava, Advocate holding brief of Shri Mayank Yadav, learned counsel for the informant as well as Shri V.K.S. Parmar, learned A.G.A. for the State and perused the record.
3. Applicant seeks bail in Case Crime No.340 of 2022, under Sections 354-B, 376, 506 I.P.C. and 3/4 Prevention of Children From Sexual Offences Act, Police Station Kandhala, District Shamli, during the pendency of trial.
4. As per prosecution story, the applicant and other co-accused person Wasid are said to have outraged the modesty of the daughter of the informant about 2-3 months before the lodging of the FIR and are stated to have taken some indecent photographs of her. The applicant and co-accused person are stated to have even threatened her to make the said photographs viral on social media lest she may succumb to their lust. On 10.10.2022, the applicant and co-accused person are stated to have posted some indecent photographs and messages on Facebook, thereby making them viral. The FIR was instituted on 12.08.2022 at 5:24 PM.
5. Learned counsel for the applicant has stated that the applicant is absolutely innocent and has been falsely implicated in the present case. The FIR is delayed and there is no explanation of the said delay caused. As per the ossification test report, the age of the victim was found to be 19 years, as such she is major. Learned counsel has further stated that initially the FIR was instituted under Section 354-B, 506 I.P.C. and 7/8 of POCSO Act, later on in the statement of the victim recorded u/s 164 Cr.P.C., the allegations have been inflated to that of rape. These allegations are false and have been levelled after legal consultation. There is no photograph or message on record to suggest that the applicant had made them viral as is evident from the supplementary statement of the victim and one relative Tasim, who have also reiterated their statements that no photograph or message has been made viral on social media. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length. There is no criminal history of the applicant. The applicant is languishing in jail since 13.08.2022. In case, the applicant is released on bail, he will not misuse the liberty of bail.
6. Per contra, learned counsel for the informant and learned A.G.A. have vehemently opposed the bail application on the ground that in this non permissive society, it is but natural that a lady would think several times before lodging an FIR as her modesty has been outraged by the applicant initially and later on she has been subjected to sexual assault.
7. Learned counsel for the informant has placed much reliance on the judgment of Apex Court passed in the case of Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, (1983) 3 SCC 217, wherein the Apex Court has opined that in the current non permissive indian society, no girl would foist a false case of sexual assault against any person to avoid being maligned in society.
8. Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, the evidence on record, taking into consideration the fact that the age of the victim is 19 years and initially the FIR was lodged under Section 354-B only, and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail as the judgment of Apex Court passed in the case of Bharwada Bhoginbhai Hirjibhai (supra) stands distinguished. The bail application is allowed.
9. Let the applicant- Shahzad involved in aforementioned case crime number be released on bail on furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.
(i) The applicant will not tamper with the evidence during the trial.
(ii). The applicant will not pressurize/ intimidate the prosecution witness.
(iii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
(iv) The applicant shall not commit an offence similar to the offence of which he is accused, or suspected of the commission of which he is suspected.
(v) The applicant 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.
10. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
11. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.
(Krishan Pahal, J.) Order Date :- 7.4.2023 Ravi Kant