Shavez v. State of U.P

Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43977 of 2023 Applicant :- Shavez Opposite Party :- State of U.P. Counsel for Applicant :- Mohd. Khalil,Mohd. Afzal Ansari Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.

¶1Heard Mr. Mohd. Khalil, the learned counsel for applicant and the learned A.G.A. for State

¶2Perused the record.

¶3Instant bail application has been filed by applicant-Shavez seeking his enlargement on bail in Case Crime No. 104 of 2023 under Sections 366, 376 I.P.C., Police Station-Rohta, District-Meerut, during the pendency of trial.

¶4Record shows that in respect of an incident, which is alleged to have occurred on 04.06.2023, a prompt F.I.R. dated 21.07.2023, was lodged by first informant-Sri Bahadur (father of the prosecutrix) and was registered as Case Crime No. 104 of 2023 under Sections 366 I.P.C., Police Station-Rohta, District-Meerut. In the aforesaid F. I.R., applicant-Shavez has been nominated as solitary named accused.

¶5The gravamen of the allegations made in the F.I.R. is to the effect that daughter of first informant went missing from

04.06.2023. Accordingly, a missing person report was lodged on

06.04.2023. The F.I.R. further concludes with the recital that named accused-Shavez enticed away the daughter of the first informant.

¶6After aforementioned F.I.R. was registered, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. The prosecutrix was recovered on 21.07.2023. Thereafter statement of the prosecutrix was recorded under Section 161 Cr.P.C., which is on record at page 28 of the paper book. Thereafter, the prosecutrix was medically examined. The Doctor, who examined the prosecutrix did not find any such injury on the body of the prosecutrix so as to denote the commission of deliberate or forceful sexual assault. Thereafter the statement of prosecutrix was recorded under Section 164 Cr.P.C. wherein the prosecutrix has clearly implicated the applicant for deliberately dislodging her modesty repeatedly on the false promise of marriage. On the basis of above, he came to the conclusion that complicity of applicant is established in the crime in question. Accordingly Investigating Officer submitted the charge-sheet dated 10.08.2023 whereby applicant has been charge sheeted under Section 366 and 376 I.P.C.

¶7Learned counsel for applicant contends that though the applicant is a named as well as charge-sheeted accused yet he is liable to be enlarged on bail. Referring to the statement of the prosecutrix under Section 161 Cr.P.C. he submits that prosecutrix has not made any allegation against applicant in her aforesaid statement. Morevoer, the prosecutrix is major. She is a consenting party. Allegation with regard to commission of rape upon false promise of marriage has been made for the first time in the statement of prosecutrix under Section 164 Cr.P.C. On the above premise, he therefore submits that no credence can be attached to the statements of the prosecutrix referred to above. Medical evidence does not support the ocular version.

¶8Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in custody since 24.07.2023. As such he has undergone more than two months of incarceration. The police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has been submitted against applicant, therefore the entire evidence sought to relied upon by the prosecution against applicant stands crystallised. Upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. He therefore contends that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

¶9Per contra, the learned A.G.A. for State has opposed the prayer for bail. He submits that since the applicant is a named as well as charge-sheet accused, therefore he does not deserve any indulgence by this Court. The issue as to whether any false promise of marriage was made by applicant or not is a question of fact which can be more appropriately decided during the course of trial. He further submits that as per the scheme of the Code of Criminal Procedure, the statement under Section 164 Cr.P.C. has to be given preference over the statement under Section 161 Cr.PC. The prosecutrix in her said statement has clearly implicated the applicant in the crime in question on the false promise of marriage. He submits that in view of above and the law laid down by Apex Court in the following judgments:-(i). Sonu alias Subhash Kumar Vs. State of U.P., 2021 SCC OnLine SC 181, (ii). Pramod Suryabhan Pawar Vs. State of Maharashtra, 2019 SCC OnLine SC 1073, (iii). Maheshwar Tigga Vs. State of Jharkhand (2020) 10 SCC 108, (iv). Mandar Deepak Pawar Vs. State of Maharashtra and Another, 2022 Live Law, SC 649 (v). Naim Ahmed Vs. State (NCT of Delhi), 2023 SCC OnLine SC 89, no sympathy be shown by this Court in favour of applicant. On the cumulative strength of above, he submits that present application for bail is liable to be rejected by this Court.

¶10When confronted with above, the learned counsel for applicant could not over come the same.

¶11Having heard the learned counsel for applicant, the learned A.G.A. for State, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant coupled with the fact that prosecutrix is a young girl aged about 21 years whose modesty has been repeatedly and deliberately dislodged by applicant on the false premise of marriage, the conduct of applicant has been clearly stated by the prosecutrix in her statement under Section 164 Cr.P.C., there is no denial of the said allegation in the affidavit filed in support present application for bail, therefore irrespective of the submissions urged by the learned counsel for application in support of the bail application, this court does not find any good or sufficient ground to enlarge the applicant on bail.

¶12As a result, present application for bail fails and is liable to be rejected.

¶13It is accordingly rejected. Order Date :- 27.10.2023 YK High Court of Judicature at Allahabad