Jafar Shekh v. State of U.P. and 3 Others

Court No. - 68 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45280 of 2023 Applicant :- Jafar Shekh Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Mohan Tiwari Counsel for Opposite Party :- G.A. Hon'ble Dr. Gautam Chowdhary,J.

¶1Heard learned counsel for the applicant, learned A.G.A for the State and perused the record.

¶2It has been argued by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case. Learned counsel further submits that initially F.I.R. was lodged by the complainant under Section 363, 120-B I.P.C. against one Rohan Chauhan and the applicant with the allegation that co-accused Rohan Chauhan was used to met with her daughter for more than one and half year, of which she made complaint with the family members of Rohan Chauhan, thereafter, Rohan Chauhan went to Mumbai and on 19.07.2023 the applicant who is a friend of Rohan Chauhan eloped her minor daughter and she suspects that the applicant had eloped her daughter to meet her to the co-accused, Rohan Chauhan. He further submits that when the victim was recovered her statement under Section 161 Cr.P.C. was recorded in which she has stated that she is 15 years of age, she used to talk with Rohan Chauhan, who went to Mumbai about ten days prior to the date of incident, she used to talk with him on mobile phone and he told her to come Mumbai with the applicant and she went with the applicant to Mumbai. Learned counsel for the applicant further submits that in her statement recorded under Section 164 Cr.P.C. the victim has changed her earlier version and developed new story that applicant and Rohan Chauhan eloped her and brought her to Mumbai where Rohan Chauhan and the applicant committed her rape. Thus, there is material contradiction in the statement of the victim recorded under Sections 161 & 164 Cr.P.C. Learned counsel has next argued that in the medical examination of the victim, no definite opinion regarding sexual assault has been given by the concerned doctor. As per the radiological report age of the victim was found to be about 18 years. It is thus contended that medical report also does not corroborate with the prosecution version. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been mentioned. It has also been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. He next submits that applicant is languishing in jail since 25.07.2023, having no criminal history.

¶3Per contra, learned A.G.A. has opposed the prayer for bail of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserve any indulgence.

¶4After 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 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.

¶5Let applicant-Jafar Shekh, involved in Case Crime No. 264 of 2023, under Sections 363, 120-B, 376 I.P.C. and Section 3/4 of Protection of Children From Sexual Offences Act, Police Station Rampur Karkhana, District Deoria, be enlarged on bail on furnishing a personal bond and two heavy local sureties each of the like amount to the satisfaction of the court concerned subject to the following conditions:-

(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.

¶6The 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.

¶7The bail application is allowed. Order Date :- 27.10.2023 Mustaqeem. High Court of Judicature at Allahabad