Ali Hasan Urf Babu v. State of U.P. and 3 Others

Court No. - 68 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 52469 of 2023 Applicant :- Ali Hasan Urf Babu Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ranjeet Kumar Mishra,Rajesh Kumar Singh 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.

¶2Learned counsel for the applicant submits that applicant is innocent and has been falsely implicated in the present case. Learned counsel further submits that applicant is named along with other three accused persons in the F.I.R. wherein it has been alleged by the mother of victim that four to five months prior to the lodging of the F.I.R. her minor daughter aged about 16 years took by the applicant for some work at the shop of one accused, Kallu, where the applicant, Kallu, Panna Soni and Prince Tiwari committed her rape forcibly and accused Panna Soni also made video of the incident from his mobile phone, when her daughter returned she told about the incident then the informant met them to complain they threatened her to make the said video viral on account of which did not tell anything to anyone but when it came into her knowledge that the said video has been viral then she came at the police station to lodge the F.I.R. Learned counsel for the applicant further submits that in her statement recorded under Section 161 Cr.P.C. the victim has stated that accused Panna Soni took her at the shop of accused, Kallu for a party, where she was served cold drink mixed with liquor and thereafter she was committed to rape by all the four accused persons. Learned counsel for the applicant further submits that in her statement recorded under Section 164 Cr.P.C. the victim has made allegation of rape against three persons, i.e., Kallu, Panna Soni and one unknown and she has not took the name of applicant. Learned counsel for the applicant further submits that medical evidence does not support the prosecution case. Learned counsel for the applicant further submits that F.I.R. has been lodged after a long delay of 4-5 months, there are various contradictions in the F.I.R. as well as in the statements of the victim recorded under Section 161 & 164 Cr.P.C. as well as in the statements of mother and sister of the victim, there is no recovery of alleged video and there is no evidence that the alleged video of the incident was viral, thus, applicant has falsely been implicated in the case with malicious intention. 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 26.08.2023, 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-Ali Hasan Urf Babu, involved in Special Case No. 98 of 2023, arising out of Case Crime No. 165 of 2023, under Sections 376D, 504 I.P.C. read with Section 3(1)(Dh), 3(2)(5) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Section 5/6 of Protection of Children From Sexual Offences Act and Section 67A of Information & Technology Act, Police Station Charkhari, District Mahoba, 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 :- 7.12.2023 Mustaqeem. High Court of Judicature at Allahabad