Allahabad High Court
Shamshad Khan vs State Of U.P. And 3 Others on 1 March, 2024
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD ? Neutral Citation No. - 2024:AHC:38221 Court No. - 64 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 24294 of 2023 Applicant :- Shamshad Khan Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Vidit Narayan Mishra Counsel for Opposite Party :- Ashutosh Kumar Srivastava,G.A. Hon'ble Ajay Bhanot,J.
Matter is taken up in the revised call. None appears on behalf of the applicant. The name of the learned counsel for the applicant are shown in the cause list.
This Court also takes notice of some realities of criminal litigation in the State. Applicant whose counsel fail to turn up before the Court when the matter is taken up for hearing becomes a victim of undeserved want within the meaning of Section 12(e) of the Legal Services Authorities ('LSA') Act, 1987. The absence of the counsel has to be seen in light of various socio-economic realities. Many under trials are financially destitute. They are at times abandoned by their family members and often lack effective pairokars. Such persons are unable to foot the expenses for getting the matter listed on a regular basis. On occasions counsels for such applicants stop appearing when remuneration for their expenses is not borne by the prisoners.
In the wake of these circumstances the appropriate course for the courts are always to seek the opinion of the accused persons before appointing an amicus curiae. However, considering the length of imprisonment of the applicant this Court has decided to appoint an amicus curiae in the facts of this case.
The applicant cannot be bereft of legal aid and the matter cannot be dismissed for non-prosecution in view of the judgement rendered by this Court in Criminal Misc. Bail Application No.18536 of 2020 (Maneesh Pathak v. State of U.P.).
Sri Hitesh Pachori (A/H0168/12) learned counsel is appointed as amicus curiae to represent the applicant and assist the Court.
By means of the bail application the applicant has prayed to be enlarged on bail in Case Crime No. 412 of 2021 at Police Station- Kasna/Beta-2, District- Gautam Buddh Nagar under Sections 323, 328, 363, 365, 366, 376-D, 376 (2) (n), 120B IPC and Section 5 (g)/6 of POCSO Act. The applicant is in jail since 18.08.2022.
The bail application of the applicant was rejected by the learned trial court on 17.01.2023.
The following arguments made by Sri Hitesh Pachori, learned amicus curiae on behalf of the applicant, which could not be satisfactorily refuted by Shri Paritosh Kumar Malviya, learned AGA-I from the record, entitle the applicant for grant of bail:
1. Learned counsel for the applicant contests the minority of the victim as depicted in the prosecution case.
2. The victim was wrongly shown as a minor of 16 years in the F.I.R. only to falsely implicate the applicant under the stringent provisions of the POCSO Act and cause his imprisonment.
3. Learned counsel for the applicant contests the age of the victim set out in the prosecution case in light of the judgement of this Court in Monish Vs. State of U.P. and others (Criminal Misc. Bail Application No. 55026 of 2021) and on the following grounds:
(i) There are material contradictions in the age of the victim as recorded in various prosecution documents.
(ii) The age of the victim was incorrectly got registered in the school records by the victim's parents to give her an advantage in life. There is no lawful basis for the age related entry of the victim in the school records. The school records disclosing her age as 16 years 7 months and 10 days are unreliable.
(iii) The victim in her statement under Section 161 Cr.P.C. has asserted that she is 16 years of age.
(iv) No medical examination to determine the correct age of the victim as per the latest scientific criteria and medical protocol by eminent doctors from a reputed institution was got done by the prosecution as the same would have established the majority of the victim and falsified the prosecution case. The victim is in fact a major.
4. The victim and the applicant were intimate.
5. The victim eloped with the applicant on 22.04.2021. The two stayed together at the native village of the applicant for more than one year.
6. The applicant is a resident of village Samastipur, Bihar.
7. The victim soon became estranged with the applicant. She left Samastipur and went back to her village in Greater Noida without the knowledge of the applicant.
8. The FIR was registered three months after the victim had eloped.
9. The delay in lodgment of the FIR in the facts and circumstances of the case is fatal to the prosecution case.
10. The victim was residing freely in Samastipur (Bihar) for more than one year. The victim was never confined or bound down. She was at public places but never resisted the applicant nor raised an alarm. Her conduct shows that she was a consenting party.
11. Major inconsistencies in the F.I.R., statements of the victim under Section 161 Cr.P.C. and under Section 164 Cr.P.C. discredit the prosecution case.
12. Medical evidence to corroborate the commission of rape has not been produced by the prosecution.
13. The applicant does not have any criminal history apart from this case.
14. The applicant is not a flight risk. The applicant being a law abiding citizen has always cooperated with the investigation and undertakes to cooperate with the court proceedings. There is no possibility of his influencing witnesses, tampering with the evidence or reoffending.
In wake of the preceding discussion and without making any observations on the merits of the case, the bail application is allowed.
Let the applicant- Shamshad Khan be released on bail in the aforesaid case crime number, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court below. The following conditions be imposed in the interest of justice:-
(i) The applicant will not tamper with the evidence or influence any witness during the trial.
(ii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
(iii) While fixing sureties the trial court shall be guided by the judgment of this Court in Arvind Singh Vs State of U.P. Thru. Secretary Home Department (Application U/S 482 No. 2613 of 2023). Since the applicant resides in State of Bihar sureties accepted by the jurisdictional magistrate of his native village shall be accepted by the trial court.
The District Legal Services Authority (DLSA), Gautam Budh Nagar shall ensure that appropriate legal aid is made available to the applicant for purposes of submitting sureties and completion of other formalities for being set forth at liberty.
Registry is directed to send a copy of this order to the District Legal Services Authority (DLSA), Gautam Budh Nagar for onward communication to the applicant who is in jail, and for assisting the applicant in the manner stated above.
The High Court Legal Services Committee is requested to consider the payment of usual remuneration to Sri Hitesh Pachori (A/H0168/12), learned amicus curiae.
A Hindi translated copy of this order shall be provided to the accused in jail through the District Legal Services Authority.
Order Date :- 1.3.2024 Pravin