Gulfam v. State of U.P. and 3 Others

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 27953 of 2023 Applicant :- Gulfam Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Shikhar Tandon,Mohammad Firoz Khan Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.

¶1List revised.

¶2Heard Sri Mohammad Firoz Khan, learned counsel for the applicant and Sri Ajay Singh, learned A.G.A.-I for the State and perused the material on record.

¶3This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant-Gulfam, seeking enlargement on bail during trial in connection with Case Crime No. 857 of 2022, under Sections 376, 354b, 504, 506 I.P.C., 5I/6 POCSO Act, 3 (2) (v) SC/ST Act and 67B of the I.T. Act, Police Station Hapur Nagar, District Hapur.

¶4The first information report of the present matter was lodged on 29.09.2022 by the victim against Nazimuddin @ Dammu and the applicant alleging therein that Nazimuddin had kidnapped her minor brother and for releasing him called her in jungle and comitted rape upon her. She made a report at the police station but the accused in connivance with the doctor and police got the said case registered as a case for enraging the modesty only. Nazimuddin then kidnapped her and committed rape upon her which was recorded in a video by the applicant after which he used to call her and commit rape upon her. The applicant also committed rape upon by her by threatening. On 06.09.2022 at about 10.30 p.m. when she was going to hospital the accused persons met her, abused her and tried to kidnap her. They tore her clothes and threatened her.

¶5Learned counsel for the applicant argued that the present first information report has been lodged after a delay of about 23 days from the incident dated

06.09.2022. It is argued that there is no explanation regarding delay in lodging of the first information report. It is further argued that in so far as the offence of rape is concerned, the same is totally vague in as much as no date & time of the said incident is mentioned in the first information report. It is argued that the applicant has been falsely implicated in the present case. It is further argued that co-accused Nazmuddin @ Dammu has been granted bail by a co-ordinate Bench of this Court vide order dated 13.4.2023 passed in Criminal Misc. Bail Application No. 8448 of 2022, the copy of the said order has been produced before the Court which is taken on record. It is argued that the victim is a major girl as she has disclosed her age as 20 years in her statement during investigation. The applicant has no criminal history as stated in para 22 of the affidavit and is in jail since 19.05.2023.

¶6Per contra, learned counsel for the State opposed the prayer for bail.

¶7After having heard learned counsel for the parties and perusing the record, it is evident that first information report has been lodged on 29.09.2022 whereas the incident has taken place on 06.09.2022 and as such there is a delay of about 23 days in lodging of first information report for which there is no plausible explanation. The victim has disclosed her age as 20 years in her statement recorded under section 161 Cr.P.C. and as such she is a major girl. Co-accused Nazmuddin @ Dammu has been granted bail by a co-ordinate Bench of this Court.

¶8Looking to 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, this Court is of the view that the applicant may be enlarged on bail.

¶9Let the applicant-Gulfam, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

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.

(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

¶10The 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 and send the applicant to prison.

¶11The bail application is allowed. Order Date :- 23.11.2023 AS Rathore (Samit Gopal,J.) High Court of Judicature at Allahabad