Allahabad High Court
Azeem vs State Of U.P. on 28 July, 2020
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 3 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10203 of 2020 Applicant :- Azeem Opposite Party :- State of U.P. Counsel for Applicant :- Gaurav Kakkar Counsel for Opposite Party :- G.A.,Shakeel Ahmad Azmi and Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10250 of 2020 Applicant :- Nawajish Opposite Party :- State of U.P. Counsel for Applicant :- Gaurav Kakkar Counsel for Opposite Party :- G.A.,Shakeel Ahmad Azmi Hon'ble Samit Gopal,J.
Heard Sri Gaurav Kakkar, learned counsel for the applicants, Sri Shakeel Ahmad Azmi, learned counsel for the first informant and Sanjay Kumar Singh, learned A.G.A. for the State and perused the material on record.
These two bail applications pertain to the same case crime number and are of different persons and hence are being decided by a common order.
These bail applications under Section 439 of Code of Criminal Procedure have been filed by the applicants Azeem and Nawajish seeking enlargement on bail during trial in connection with Case Crime No. 288 of 2017, under Section 376-D I.P.C., registered at P.S. Chhaprauli, District Baghpat.
Learned counsel for the applicants argued that the applicants have been falsely implicated in the present case. The occurrence in the present matter is alleged to have taken place on 11.07.2017 at about 7:30 am for which the present first information report was registered on 25.07.2019 by Arif Khan the husband of the prosecutrix. It is further argued that after investigation the police submitted a final report in favour of the applicants. Subsequently the matter was sent for further investigation and the Investigating Officer again concurred with the same finding. Then again the matter was sent for further investigation twice and on both occasions the Investigating Officers concurred the same opinion as that of the first Investigating Officer. It is argued that every time the matter was sent for further investigation it was done by different Investigating Officers. Subsequently, on protest petition a copy of which is annexed as Annexure-26, to the affidavit Nawazish/applicant, Azeem/applicant and Umar were summoned under Section 376-D I.P.C. vide order dated 30.01.2019. In the meantime an application under Section 482 Cr.P.C. being Application U/S. 482 Cr.P.C. No. 9594 of 2019 (Nawazish and 2 Others vs. State of U.P. And Another) was filed before this Court, challenging the entire proceedings of the case which was disposed of vide order dated 12.03.2019 and it was directed that the applicants may move a discharge application before the trial court within one month which shall be decided within a further period of two months from the date of filing of the application. The applicants were directed to furnish a personal bond as per Section 88 Cr.P.C. before the court below. It was also directed that till the discharge application is decided no coercive measures shall be taken against the applicants. A copy of said order is annexed as Annexure-28 to the affidavit. It is then argued that subsequently after the rejection of the discharge application the applicants and other co-accused persons namely Umar preferred Criminal Revision No. 94 of 2020 before this Court and vide order dated 09.01.2020 the same was disposed of and direction was issued for disposal of the bail application of the revisionists. Copy of the said order is annexed as Annexure-29 to the affidavit. It is argued that subsequently, the applicants surrendered and applied for the bail and their bail applications were rejected and they are in jail since 06.02.2020.
Addressing on the merits of the matter, learned counsel for applicants argued that there is inordinate delay of 14 days in lodging the first information report. The story as stated in the first information report is far from belief as the first informant stated that he on hearing the scream of his wife entered inside the house and found his wife being raped on which he rescued her and then she told him the entire story and transcribed an application on the basis of which the present first information report has been registered. It is argued that the doctor who conducted the medical examination of the prosecutrix did not find any internal injury in the perineal area of the prosecutrix, the copy of injury report is annexed as Annexure-5. Learned counsel for applicants further argued that the applicants have been falsely implicated due to enmity for which he places reliance on para 34 and 35 of the affidavit in support of the bail application. The said paragraphs are quoted herein below:
"34.That the entire prosecution story narrated in the F.I.R. is absolutely false, fabricated, concocted and tainted with malafides the F.I.R. has been lodged only out of vengeance and as a pressure tactics. The crux of the matter is on 02.03.2017 an incident had taken place with Zeba daughter of Shaukat son of Mahboob in which Asif alias Saddan and Tarik Khan both sons of Jamshed were named accusedsince Zahida wife of Shakeel (mother of Nawajish) was the sitting pradhan she had supported the cause of Shaukat specially because he had a genuince case and was much weaker in status as compare to the accused persons and this is the genesis of the bad blood between the parties."
"35. That it is extremely important to specify here Asif alias Saddan and Tarik Khan named accused persons in Case Crime No.265 of 2017 are real Devars (brother-in-laws of Arif and Atiya) the prosecutrix in the said case and it is only on account of Case Crime No.265 of 2017 that the F.IR. has been lodged at Case Crime No.288 of 2017 against Nawajish, Azeem and Umar as Nawajish is the son of Zahida Pradhan and Shakeel whereas Azeem and Umar are the cousin bothers of Nawajish. Hence in view of the aforesaid facts it stands crystal clear that only because Zahida and Shakeel had supported Shaukat in lodging the F.I.R. at Case Crime No.265 of 2017 the applicant and others have been falsely implicated in the present case. For kind perusal of this Hon'ble Court copy of the F.I.R. registered at Case Crime N.265 of 2017 under Section 354(B), 376, 506 I.P.C. and Section 3/4 of POCSO Act lodged at Police Station - Chhaprauli, District - Baghpat is being filed herewith and marked as Annexure No.30 to this affidavit."
It is further argued that the independent witnesses examined during investigation whose statements are annexed as Annexure-9 to the affidavit being Amanat Khan, Ishaq, Javed, Shrafat and Sabu Khan have not stated anything which would implicate the applicants but to the contrary have stated that due to previous enmity the present case has been instituted against the applicants. It is argued that the story as put forward by the first informant for reaching the place of occurrence at the nick of time is too thin to be believed as no one would even do any act in such a manner so that the same may be heard and exposed that too in day light. It is argued that the applicant Azeem is said to have no criminal history as stated in paragraph 53 of his bail application.
So far as Nawajish is concerned, he is said to be involved in three cases which have been explained in paragraphs 4, 5 and 6 of the supplementary affidavit filed in his bail application. The three cases as stated and reported against him are Case Crime No.81 of 2016 under Sections 352, 323, 504, 506 I.P.C. in which it has been found that he has been falsely implicated and has been exonerated and charge sheet has been submitted against Firoz and Matloob only. The said charge sheet has been annexed as Annexure - S.A.-2 to the supplementary affidavit. The next case is Case Crime No.37 of 2018 under Sections 420, 467, 452, 307 I.P.C., in which a final report has been submitted in favour of the applicant/Nawazish on 23.05.2018. The said final report is annexed as Annexure-S.A.-3 to the supplementary affidavit. The third and the last case is Case Crime No. 362 of 2015 under Section 188 I.P.C., in which fine of Rs.700 has been imposed by the Additional Civil Judge (Senior Division), Baghpat after the confession of the applicant. The certified copy of this judgment and order is dated 14.12.2019 to the said fact is annexed as Annexure- S.A.-4. It is thus argued that all the three cases as reported and shown against the applicant/Nawajish, though are of pity nature even though the applicant/Nawajish has been falsely implicated in them.
It has been assured on behalf of the applicants that they are ready to cooperate with the process of law and shall faithfully make themselves available before the court whenever required. It has also been pointed out that the applicant/Azeem is not having any criminal history as stated in para-53 of the affidavit and both the applicants namely Azeem and Nawajish are in jail since 06.02.2020 and there is no likelihood of early conclusion of trial and hence, the applicants may be released on bail during pendency of trial.
Per contra, learned counsel for the first informant and learned A.G.A. vehemently opposed the prayer for bail and it was argued that the prosecution case in the first information report and in the statements recorded under Sections 161 and 164 Cr.P.C. of the prosecutrix is consistent. The applicants are named therein with specific act of committing rape upon the prosecutrix. It is argued that the present case is a case of gang rape. It is further argued that Nawazish is having criminal history and is a person of criminal bent of mind.
After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicants namely, Azeem and Nawajish may be enlarged on bail.
Let the applicants Azeem and Nawajish 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 concerned with the following conditions which are being imposed in the interest of justice:-
i) The applicants will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicants will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicants shall file an undertaking to the effect that they 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.
(iv) The applicants will not misuse the liberty of bail in any manner whatsoever. In case, the applicants misuses the liberty of bail during trial and in order to secure their presence proclamation under section 82 Cr.P.C., may be issued and if applicants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them, in accordance with law, under section 174-A I.P.C.
(v) The applicants 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 applicants are 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 them in accordance with law and the trial court may proceed against them under Section 229-A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicants.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicants to prison.
The bail application is allowed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 28.7.2020 Md Faisal (Samit Gopal,J.)