Sultan Urf Nasimuddin v. State of U.P. and 3 Others

Court No. - 68 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 47505 of 2023 Applicant :- Sultan Urf Nasimuddin Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Parmeshwar Yadav,Anil Kumar Yadav 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 on 03.09.2023 an F.I.R. was lodged by the informant, who is mother of the victim, against the applicant and his family members, alleging therein that today at about 6:30 p.m. her minor daughter, whose date of birth is

01.01.2010, has been enticed away by the applicant on the pretext of marriage. Learned counsel for the applicant further submits that after the victim was recovered her statement under Section 161 Cr.P.C. was recorded wherein she has stated that she is aged about 15 years, she used to talk with the applicant for the last six years, he made sexual relations with her several times on her house, she is pregnant now, she wants to reside with the applicant and does not want to go with her parents, she studied upto Class-V, her date of birth is 17.08.2008 and she went with the applicant on her own wishes. Learned counsel for the applicant further submits that the victim in her statement recorded under Section 164 Cr.P.C. has almost repeated her earlier statement recorded under Section 161 Cr.P.C. by some variation that when she was going to the house of applicant her brother-in-law (Jija) took her to her house, but he has not made any allegation of rape against the applicant and she wants to reside with the applicant. Learned counsel for the applicant further submits that in the medical examination of the victim report the doctor found no visible injury on the body of the victim and opined that sexual assault cannot be ruled out. Learned counsel for the applicant further submits that Medical Board opined that on the basis of medical report and X-ray report of the victim she is aged about 18 years, thus she is major. Learned counsel for the applicant further submits that as per the statements of the victim recorded under Section 161 & 164 Cr.P.C. the victim is a consenting party, thus, 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 04.10.2023, 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-Sultan Urf Nasimuddin, involved in Case Crime No. 216 of 2023, under Section 376(2)Gha I.P.C. and Section 5(3)/6 of Protection of Children From Sexual Offences Act, Police Station Sinduriya, District Maharajganj, 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 :- 7.11.2023 Mustaqeem. High Court of Judicature at Allahabad