Shahzaib v. State of U.P

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44212 of 2023 Applicant :- Shahzaib Opposite Party :- State of U.P. Counsel for Applicant :- Manoj Kumar Tripathi,Vinod Kumar Tirpathi Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.

¶1Heard Sri Vinod Kumar Tirpathi, learned counsel for the applicant and Sri Srikrishna Tiwari, learned counsel for the State and perused the material on record.

¶2This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant-Shahzaib, seeking enlargement on bail during trial in connection with Case Crime No. 168 of 2023, under Sections 328, 376 I.P.C., Police Station Kotwali, District Moradabad.

¶3The first information report of the present matter was lodged on 13.09.2023 by the victim against the applicant alleging therein that they came in contact through facebook. The applicant by using ID of someone else called her to a hotel and offered her cold-drink with some intoxicated substance after which he established physical relationship with her. He made a video of it and is torturing her.

¶4Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the victim has disclosed her age as 27 years in her statement recorded under Section 161 Cr.P.C. It is argued that the relationship was a consensual relationship. The victim went to a hotel on her own showing as per the first information report itself. It is argued that the applicant neither made any video nor any such video was made viral. There is no recovery of any such video. The medical examination report of the victim does not support the prosecution case. The applicant has no criminal history as stated in para 16 of the affidavit and is in jail since 22.09.2023.

¶5Per contra, learned counsel for the State opposed the prayer for bail.

¶6Looking to the facts and circumstances of this case, the nature of evidence 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 applicant may be enlarged on bail.

¶7Let the applicant-Shahzaib, 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 applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

ii) The applicant 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 applicant shall file an undertaking to the effect that he 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 applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure his 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, in accordance with law, under section 174-A I.P.C.

(v) 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 him in accordance with law and the trial court may proceed against him 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 applicant.

¶8The 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 applicant to prison.

¶9The bail application is allowed. Order Date :- 17.10.2023 AS Rathore (Samit Gopal,J.) High Court of Judicature at Allahabad