Mehfooz Alam v. State of U.P. and 3 Others

Court No. - 68 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40852 of 2023 Applicant :- Mehfooz Alam Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ram Pravesh 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 F.I.R. dated 19.05.2023 was lodged by the complainant, who is father of the victim, against the applicant under Sections 363, 366 I.P.C., alleging therein that on 17.05.2023 the applicant enticed her minor daughter on the pretext of solemnizing marriage with him. Learned counsel for the applicant further submits that when the victim was recovered her statement under Section 161 Cr.P.C. was recorded wherein she has stated that she is aged about 17 years, on the date of incident applicant called her, thereafter, she went with him to solemnize marriage with him because her parents wants to marry her with some other person, thereafter, she went to Bareilly, Lucknow, Ahmedabad, thereafter, Kanpur and Delhi, and physical relations were also made between them. Learned counsel for the applicant further submits that in her statement recorded under Section 161 Cr.P.C. the victim has stated that on the date of incident she went alone from her house, the applicant met him on the way, he wants to left her to her home but she has refused, they stayed in Rampur for three days and no wrong act has been done between them, thus, the victim has not made allegation of rape against the applicant. Learned counsel for the applicant further submits that in the medical examination of the victim the doctor has opined that no evidence of sperm as noted either dead or alive in vaginal smear is found and no definite opinion can be given about sexual assault. As per radiological report the victim was found to be about 17 years. Learned counsel for the applicant further submits that taking benefit of two years either side the victim is major. Learned counsel for the applicant further submits that as per the statement of victim recorded under Section 164 Cr.P.C. the victim has not made any allegation of rape against the applicant and she went with the applicant on her own will, thus, it appears that victim is a consenting party. 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 22.05.2023, 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-Mehfooz Alam, involved in Case Crime No. 95 of 2023, under Sections 363, 366, 376 I.P.C. and Section 3/4 of Protection of Children From Sexual Offences Act, Police Station Kotwali, District Rampur, 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 :- 8.11.2023 Mustaqeem. High Court of Judicature at Allahabad