Nasir v. State of U.P

Court No. - 68 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43774 of 2020 Applicant :- Nasir Opposite Party :- State of U.P. Counsel for Applicant :- Amar Bahadur Maurya,Jalaj Kumar Tripathi,Sushil Kumar Kushwaha,Syed Mohd. Khalid Counsel for Opposite Party :- G.A.,Sudhir Kumar Hon'ble Dr. Gautam Chowdhary,J.

¶1Case called out in the revised list, no one has appeared on behalf of complainant.

¶2Heard learned counsel for the applicant, learned A.G.A for the State and perused the record.

¶3It 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 initially F.I.R. was lodged on 29.06.2020 by the complainant under Sections 363, 366 I.P.C. against the applicant and co-accused, Ashwani Kumar alias Ajju, with the allegation that her daughter is missing since

26.06.2020 and she made suspicion that co-accused Ashwani has enticed away her daughter and the applicant has helped the said co-accused and his daughter has also taken golden and rupees. Learned counsel for the applicant submits that F.I.R. was lodged with a great delay of three days without any plausible explanation. Learned counsel for the applicant further submits that when the victim was recovered her statement under Section 161 Cr.P.C. was recorded in which she had stated that on 26.06.2020 she went with the co-accused Ashwani and the applicant, she knows them for the last 5-6 years, co-accused, Ashwani made sexual relations with her about 5-6 times, the applicant has also made sexual relations with her 2-3 times. Learned counsel for the applicant further submits that in her statement recorded under Section 164 Cr.P.C. the victim has stated that on the date of incident she went to meet the co-accused, Ashwani where applicant was also present, she along with co-accused Ashwani and Nasir stayed for ten days, where sexual relations were made between her and Ashwani on her own will and applicant also made sexual relations forcibly with her. Learned counsel for the applicant further submits that there are several contradictions in the statements of the victim recorded under Section 161 & 164 Cr.P.C. Learned counsel for the applicant further submits that in the medical examination of the victim her hymen was found old torned and no external or internal injury was found and as per the opinion of the doctor no opinion can be given about sexual assault and as per radiological report the age of the victim was found to be about 17 18 years, thus taking benefit of two years either side the victim is major. Learned counsel for the applicant further submits that as per the F.I.R. as well as the statements of victim recorded under Section 161 & 164 Cr.P.C. 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 12.07.2020, having no criminal history.

¶4Per 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. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail.

¶5After 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.

¶6Let applicant-Nasir, involved in Case Crime No. 356 of 2020, under Sections 363, 366, 376(2)(n) I.P.C. read with Section 6 of Protection of Children From Sexual Offences Act and Section 3(2)

(V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Bithari Chainpur, District Bareilly, 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.

¶7The 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.

¶8The bail application is allowed. Order Date :- 9.11.2023 Mustaqeem. High Court of Judicature at Allahabad