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

Court No. - 64 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48675 of 2023 Applicant :- Sartaz Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Kameshwar Singh,Anjali Singh Tomer,Sudhanshu Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Siddharth,J. Heard Ms. Anjali Singh Tomer, learned counsel for the applicant and learned A.G.A for the State. There are allegations against the applicant of committing the offence of rape, causing hurt and intentional insult with intent to provoke breach of peace and also offence under Section 5J(2)/6 of POCSO Act. It is alleged by the victim that the applicant committed the alleged offence against the victim on false promise of marriage. She also alleged that she became pregnant due to contact with the applicant but no such evidence was found by the investigating officer. Counsel for the applicant submits that the sister of the victim was earlier married to the applicant. Thereafter, the victim developed illicit relationship with him. Now she has alleged in her statement recorded under Section 161 Cr.P.C that the applicant promised her to marry and entered into physical relationship but he later refused to marry her. She has claimed her age as 18-19 years. Counsel for the applicant has also submitted that the applicant is in jail since 06.08.2023 and has no criminal history. He has been falsely implicated by his sister-in-law (sali) to compel him to marry her. Reliance has been placed on the judgment of Apex Court in the case of Mandar Deepak Pawar vs. The State of Maharashtra and Another passed in Criminal Appeal No. 442 of 2022, wherein Apex Court has held that where the parties entered into physical relationship without marriage and for some reason they fell apart implication for committing the offence of rape is not justified. Further reliance has been placed on the judgment of the Apex Court in the case of Vinod vs. State of Kerala, passed in S.L.P (Criminal) No. 9014 of 2013, wherein the Apex Court has held that where the victim was aware that accused was already married but she ventured into physical relationship with him, the implication for committing the offence of rape is not justified. On the other hand learned A.G.A has opposed the prayer for bail. Keeping 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. Let the applicant, Sartaz, involved in Case Crime No. 253 of 2023, under Sections-323, 376, 504 IPC and 5J(2)/6 of POCSO Act, Police Station-Civil Lines, District-Muzaffar Nagar, 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. In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail. Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted. Order Date :- 8.12.2023 Rohit High Court of Judicature at Allahabad