Allahabad High Court
Shakeel vs State Of Uttar Pradesh Through ... on 12 April, 2022
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 55095 of 2021 Applicant :- Shakeel Opposite Party :- State Of Uttar Pradesh Through Secretary Home Affair U.P. Counsel for Applicant :- Abhishek Tiwari Counsel for Opposite Party :- G.A.,Vinod Singh Hon'ble Rajeev Misra,J.
Heard Mr. Abhishek Tiwari, learned counsel for applicant, learned A.G.A. for State and Mr. Vinod Singh, learned counsel for first informant.
Perused the record.
This application for bail has been filed by applicant- Shakeel seeking his enlargement on bail in Case Crime No. 134 of 2021, under Section 376 I.P.C., Police Station- Ahar, District- Bulandshahr, during pendency of trial.
It transpires from record that in respect of an incident which is alleged to have occurred on 11.07.2021, a prompt F.I.R. dated 11.07.2021 was lodged by first informant- Smt. Sunita (prosecutrix) and was registered as Case Crime No.134 of 2021, under Section- 376 I.P.C.,Police Station- Ahar, District- Bulandshahr. In the aforesaid F.I.R., applicant Shakeel has been nominated as solitary named accused.
The gravamen of the allegation made in the F.I.R. is to the fact that named accused Shakeel forcibly dislodged the modesty of first informant/prosecutrix.
After registration of aforementioned F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. The statement of prosecutrix was recorded by the Investigating Officer under Section 161 Cr.P.C. Same is on record as Annexure-3 to the affidavit. The prosecutrix in her aforesaid statement has supported the prosecution story as unfolded in F.I.R. Subsequent to above, the prosecutrix was medically examined on the same day. The medico legal report of the prosecutrix is on record as Annexure-2 to the affidavit. Prosecutrix in her statement before the doctor has supported the prosecution story and she has also reiterated her earlier statement recorded under section 161 Cr.P.C. The doctor who examined the prosecutrix did not find any signs on her body denoting the commission of sexual assault. The recital contained at page-29 of the paper book also needs to be taken notice of "prosecutrix is menstruating". Certain samples were collected from the body of prosecutrix for pathological examination. However, the result of the same is in negative. The supplementary medico legal examination report of the prosecutrix is on record at page-38 of the paper book. Ultimately, the statement of prosecutrix was recorded under section 164 Cr.P.C. Same is on record as Annexure-4 to the affidavit. The prosecutrix in her aforesaid statement has reiterated her earlier statements.
During the course of investigation, Investigating Officer examined the other witnesses and also collected other material, on the basis of which, he came to the conclusion that complicity of the applicant in the crime in question is established. Accordingly, Investigating Officer submitted the charge-sheet dated 03.10.2021, whereby applicant has been charge-sheeted under section 376 I.P.C.
Learned counsel for applicant contends that though applicant is a named as well as charge-sheeted accused, but he is innocent. Allegations made in F.I.R. are false and concocted. As such, applicant is being falsely prosecuted in aforementioned case crime number. He has then invited attention of Court to the medico legal examination report of the prosecutrix and on basis thereof, he contends that in view of the recital contained at page-29 of the paper book, no criminality as alleged could have been committed upon prosecutrix. It is further contended that the medical evidence does not support the prosecution story as unfolded in the F.I.R. and subsequently, explained in the statements of the prosecutrix under sections 161/164 Cr.P.C.
It is lastly contended that applicant is a man of clean antecedents, inasmuch as, he has no criminal history to his credit except the present one. Applicant is in jail since 12.07.2021. As such, he has undergone nine months of incarceration. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. On the cumulative strength of above, learned counsel for applicant contends that applicant is liable to be enlarged on bail.
Per contra, the learned A.G.A. and the learned counsel for first informant have opposed this application for bail. However, they could not explain the recital contained at page-29 of the paper book.
Having heard learned counsel for applicant, learned A.G.A. for State, learned counsel for first informant, upon perusal of record and keeping in view the nature of offence, evidence, complicity of accused and accusations made but without expressing any opinion on the merits of case, applicant has made out a case for bail. Accordingly, bail application is allowed.
Let the applicant, Shakeel be released on bail in aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of 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.
However, it is made clear that any wilful violation of above conditions by applicant, shall have serious repercussion on her 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 condition mentioned above.
Order Date :- 12.4.2022/Saif