Arif v. State of U.P.And 3 Others

Court No. - 64 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 19367 of 2023 Applicant :- Arif Opposite Party :- State Of U.P.And 3 Others Counsel for Applicant :- Abhishek Gupta Counsel for Opposite Party :- G.A. Hon'ble Siddharth,J.

¶1List has been revised.

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

¶3There is allegation in the F.I.R. against the unknown accused regarding abduction of a minor girl. Subsequently, the implication of committing the offence of rape, criminal intimidation, criminal conspiracy and penetrative sexual assault was levelled against the applicant.

¶4Counsel for the applicant submits that the co-accused Raja Tyagi was implicated in this case and was assigned the role of only abduction and he has been enlarged on bail by a co-ordinate Bench of this Court vide order dated 07.04.2023 in Criminal Misc. Bail Application No. 9654 of 2023. The victim left her house on her own by stating that no one should try to search her. Subsequently, she left her house with one Arif to marry with co-accused Raja Tyagi, but their marriage could not take place. In the examination-in-chief before the trial court, P.W.1/victim stated that she has stayed with applicant and his mother only for one day in the applicant's house and she never slept with him, hence no question of commission of offence of rape by the applicant arises. The applicant is in jail since 17.01.2023 and has no criminal history to his credit.

¶5On the other hand learned A.G.A has opposed the prayer for bail, but he could not dispute the submissions urged by learned counsel for the applicant.

¶6Keeping in view the nature of the offence, evidence, complicity of the accused; submissions of the learned counsel for the parties noted above; finding force in the submissions made by the learned counsel for the applicant; keeping view the uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under-trial having fundamental right to speedy trial; larger mandate of the Article 21 of the Constitution of India; considering the dictum of Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021; considering 5-6 times overcrowding in jails over and above their capacity by the under trials and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

¶7Let the applicant-Arif, involved in Case Crime No. 08 of 2023, under Section-363, 366, 368, 376, 506, 34, 120B IPC and Section-4(2) of POCSO Act, Police Station-Madhuvan Bapudham, District-Ghaziabad, be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.

(i) The applicant shall not tamper with the evidence or threaten the witnesses.

(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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.

(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.

(iv) 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. is issued and the 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 of the Indian Penal Code.

(v) The applicant shall remain present in person before the Trial Court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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.

¶8In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.

¶9Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

¶10Trial court is directed to conclude the trial of the applicant as expeditiously as possible preferably within a period of one year.

¶11Registrar (compliance) is directed to communicate this order to the trial Court for necessary compliance within ten days. Order Date :- 5.12.2023 Saif High Court of Judicature at Allahabad