Mohammad Daud @ Dev v. State of U.P. and Another

Court No. - 85 Case :- CRIMINAL APPEAL No. - 9623 of 2023 Appellant :- Mohammad Daud @ Dev Respondent :- State of U.P. and Another Counsel for Appellant :- Vivek Singh,Om Prakash Mishra Counsel for Respondent :- G.A.,Kristen Sleeth,Meera Devi,Moti Lal,Umesh Kumar Kushwaha Hon'ble Mayank Kumar Jain,J. Heard learned counsel for the appellant, learned AGA for opposite party no.1 and learned counsel for the informant and perused the material placed on record. The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant to set aside the impugned order dated

22.08.2023 whereby the Special Judge, SC/ST Act, Meerut has rejected the bail application of the appellant moved by him in Case Crime No. 70 of 2023, under Sections 323, 376, 406, 504, 506 of IPC, and Section 3(2)5, 3(1)(Da) & 3(1)(Dha) of SC/ST Act, Police Station Nauchandi, District Meerut. There is an allegation against the appellant that he pretended himself to be a Hindu and had performed marriage with the informant on 28.03.2020. On one occasion the informant got the voter ID of the appellant and she came to know that his name was not Dev as told by him but his name was Daud. The informant came to know that appellant had performed married with her fraudulently. When she make a protest the appellant asked her to convert her religion and also make a threat that he will perform another marriage. When informant refused to convert her religion the appellant hurled with caste related abuses and left her company on 21.03.2023. Later on, the informant came to know that appellant has performed marriage. The appellant established physical relations on the basis of fraud and has committed rape. The appellant has also usurup the amount from the informant. Learned counsel for the appellant has submitted that appellant is innocent and has been falsely implicated in this case. Admittedly, the prosecutrix is major and she established physical relations at her own accord. The medical examination of the prosecutrix does not corroborate the version of the FIR since no injury was noted during her medical examination. Learned counsel for the appellant vehemently argued that it is impossible that informant got married with the appellant in the year 2020 but she came to know about his religion in the year 2023 while in between the appellant and prosecutrix has established physical relations for several times. The appellant has not committed any offence under Section SC/ST Act. Victim was a consenting party. It is a case of malicious prosecution under the provisions of S.C./S.T. Act. Appellant is languishing in jail since 19.04.2023 having no criminal history. In case, the appellant is released on bail, he will not misuse the liberty of bail. Per contra, learned A.G.A. assisted by learned counsel for the informant has supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the appellant and argued that the marriage of the informant was solemnized during lock down. So far as the statement of eye witnesses Riyaz, Zisan, and Harul are concerned, they have been given their statement on the basis of information given by the prosecutrix herself. It appears from the arguments advanced by the counsel for the parties and from perusal of material on record that the trial court has not properly considered the case of the appellant. Hence, in view of above consideration, the order of rejection of bail passed by the trial court dated 22.08.2023 is, hereby, set aside. Having considered the submissions of the parties noted above, finding force in the submissions made by the learned counsel for the appellant; appellant being under-trial having fundamental right to speedy; larger mandate of the Article 21 of the Constitution of India, considering 5-6 times overcrowding in jails over and above their capacity by under trials and without expressing any opinion on the merits of the case, Court is of the opinion that the appellant is entitled to be enlarged on bail. Let appellant, Mohammad Daud @ Dev be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

(i) The appellant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.

(ii) The appellant shall not pressurize/intimidate the prosecution witnesses.

(iii) The appellant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 of Cr.P.C.

(iv) The appellant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in the trial court.

(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel.

(vi) The appellant shall not indulge in any criminal activity or commission of any crime after being released on bail. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that absence of the appellant 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 in accordance with law. The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the appellant, if there is no other legal impediment. It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order. The criminal appeal is allowed. Order Date :- 1.11.2023 Mohit High Court of Judicature at Allahabad