Irwan v. State of U.P

Court No. - 68 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 47206 of 2023 Applicant :- Irwan Opposite Party :- State of U.P. Counsel for Applicant :- Amit Kumar Mishra,Nagendra Kumar Mishra 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 the prosecutrix lodged the F.I.R. against the applicant herself with the allegation that applicant used to come her house as he was the friend of her brother-in-law, namely, Nitin, who made her video while he was taking bath, on the basis of which he used to blackmail her for making developing friendship and threatening to viral that video, once when she was alone in the house the applicant came there and by blackmailing her he committed her rape forcefully and also made video, he also took her in a hotel and committed her rape and made video, on 07.08.2023 at about 8:00 p.m. when she was alone the applicant came there to meet her but when her brother-in-law came there the applicant fled away. Learned counsel for the applicant further submits that the prosecutrix in her statement recorded under Section 161 Cr.P.C. has repeated the same version of the F.I.R. and further stated that she used to meet the applicant outside also. Learned counsel for the applicant further submits that the prosecutrix in her statement recorded under Section 164 Cr.P.C. has again repeated the same version of the F.I.R. Learned counsel for the applicant further submits that in the medical examination of the victim report the doctor has found no internal or external injury on her body. Learned counsel for the applicant further submits that no such video clip has been recovered by the police to prove the prosecution story. Learned counsel for the applicant further submits that prosecutrix is a married woman and as per her own statement she is 30 years, she was in relations with the applicant for last about one and half year and she has never made complaint earlier and the F.I.R. was lodged on 09.08.2023 only when she was seen with the applicant by his brother-in-law on the date of incident, i.e., 07.08.2023, thus, it appears that prosecutrix is a consenting party and the applicant has falsely been implicated in the case. 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 12.08.2023, 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, without expressing any opinion on merits of the case, this Court is of the view, that the applicant may be enlarged on bail.

¶5Let applicant-Irwan, involved in Case Crime No. 173 of 2023, under Sections 376, 506 I.P.C., Police Station Bhojpur, District Ghaziabad, 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 in accordance with law.

¶7The bail application is allowed. Order Date :- 6.11.2023 Mustaqeem. High Court of Judicature at Allahabad