Saif Mirza v. State of U.P. Thru. Prin. Secy. Home, Lko. and Another

Court No. - 15 Case :- CRIMINAL APPEAL No. - 2632 of 2022 Appellant :- Saif Mirza Respondent :- State Of U.P. Thru. Prin. Secy. Home, Lko. And Another Counsel for Appellant :- Mohd. Islam Khan,Farooq Ayoob,Manish Mani Sharma Counsel for Respondent :- G.A. Hon'ble Shamim Ahmed,J. This Court had issued notice to opposite party No. 2 vide order dated 31.10.2022. As per office report dated 03.12.2022, notice upon opposite party No. 2 has been served personally. Thereafter, the matter has been listed several times and this Court vide order dated

16.8.2023 has passed the following order: "Learned A.G.A. has already filed counter affidavit after serving copy of the same to learned counsel for the appellant. In reply thereto, learned counsel for the appellant has filed rejoinder affidavit. The same are taken on record. As per Office Report dated 03.12.2022, notice has already been served personally upon opposite party no.2, but till date neither anyone has put in appearance nor any counter affidavit has been filed on behalf of opposite party No.2. As a last opportunity two weeks and no more time is allowed to the opposite party No.2 to file counter affidavit. Three days, thereafter is allowed to learned counsel for the appellant to file rejoinder affidavit. Put up this case on 25.09.2023." Today, when the case is being taken up, no counter-affidavit has been filed on behalf of the opp. Party No.2/complainant nor any counsel is present to press her case, thus, it appears that the opposite party No., 2 is not interested to contest this case. Learned counsel for the appellant prays for final disposal of this case, as the matter pertains to bail. In the above circumstances, this Court is left with no other option exception except to hear the matter finally. Heard Mr. Mohammad Ashraf, Advocate, holding brief of Sri Mohammad Islam Khan, learned counsel for the appellant as well as the learned A.G.A. and perused the entire record. This Criminal Appeal under Section 14-A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 12.10.2022 passed by learned Addl. Sessions Judge/Spl. Judge (S.C./S.T. Act), Lakhimpur Kheri, in Bail Application No. 294 of 2022, Case Crime No. 236 of 2022, under Sections 363, 366, 506 I.P.C. and Section 3(1)(Dha), 3(2)(v) of S.C./S.T. Act, Police Station Sampurna Nagar, District Kheri, whereby the bail application of the appellant has been rejected. Learned counsel for the appellant submits that the appellant is innocent and he has been falsely roped in the case due to enmity and village party-bandi. No such incident, as alleged by the prosecution, had taken place. The entire allegations in the first information report have been levelled only with the intention to gain financial aid from the State Exchequer, as the appellant is an upper caste person, whereas the victim belongs to lower caste strata of the society. As per version of the first information report, it has been stated by the complainant that the appellant on the false promise of marriage, abducted her daughter and when both of them were on the way, the appellant, seeing the Police personnel, eloped from there leaving behind the complainant's daughter alone. In her statement recorded under Section 161, Cr.P.C. the prosecutrix has stated that the appellant had pressurized her to sit on the bike. At that time some police personnel were passing from there and upon an alarm raised by the her, the appellant flee from there leaving her alone. She further stated that the appellant was saying to marry him, but she refused. In her statement recorded under Section 164, Cr.P.C. the prosecutrix has slightly changed her version, but has not changed this fact that the appellant was taking her away for marriage. Learned counsel for the appellant submits that there are material contradictions in the statement of the prosecutrix recorded under Sections 161 and 164 and the version in the first-information-report. He further submits that the entire statement given by the prosecutrix under Section 161 and 164, Cr.P.C. is false and fabricated. Nothing has been done by the appellant, as stated by the prosecutrix in her statement, nor in the version of the first information report. No allegation of physical relation has been levelled by the prosecutrix or by her mother/complainant. The present F.I.R. has been lodged only with the intention to get financial aid from the State Exchequer. There is no independent witness to support the allegations levelled against the appellant. He is in detention since

15.9.2022. Several other submissions in order to demonstrate the falsity of the allegations made against the appellant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the appellant 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. It has also been pointed out that the accused is not having any criminal history and he is in jail since 15.9.2022 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial. Learned A.G.A. for the State opposed the prayer for bail, however, he is unable to dispute the contentions raised by learned counsel for the appellant. After 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, the period of detention already undergone, the unlikelihood of early conclusion of trial and also in the absence of any convincing material to indicate the possibility of tampering with the evidence and considering that the prosecutrix under Sections 161 and 164, Cr.P.C. as well as the version in the F.I.R., the parties appear to be consenting. Love-affair appears to be existing between them. Except this fact that the appellant wants to mary the prosecutrix, no other allegation has been levelled against him, and further considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the case of Dataram Singh vs. State of UP and another, reported in (2018) 3 SCC 22, this Court is of the view that the learned court below has failed to appreciate the material available on record. The order passed by the court below is liable to be set aside. Accordingly, the appeal is allowed. Consequently, the impugned judgment and order dated 12.10.2022 passed by learned Addl. Sessions Judge/Spl. Judge (S.C./S.T. Act), Lakhimpur Kheri, in Bail Application No. 294 of 2022, Case Crime No. 236 of 2022, under Sections 363, 366, 506 I.P.C. and Section 3(1)(Dha), 3(2)(v) of S.C./S.T. Act, Police Station Sampurna Nagar, District Kheri, is hereby set aside and reversed. Let the appellant, Saif Mirza be released on bail in the Case Crime No. 236 of 2022, under Sections 363, 366, 506 I.P.C. and Section 3(1)(Dha), 3(2)(v) of S.C./S.T. Act, Police Station Sampurna Nagar, District Kheri, with the following conditions:-

(i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned.

(ii) The appellant shall appear and strictly comply following terms of bond executed under section 437 sub section 3 of Chapter-33 of Cr.P.C.:-

(a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter.

(b) The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) The appellant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.

(iii) The appellant shall cooperate with investigation /trial.

(iv) The appellant 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.

(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(vi) In case, the appellant misuses the liberty of bail during trial, in order to secure his presence, proclamation under section 82 Cr.P.C. is issued and the appellant 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.

(vii) The appellant shall remain present, 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 appellant 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. The trial court is also directed to expedite the trial of the aforesaid case by following the provisions of Section 309 Cr.P.C., strictly without granting any unnecessary adjournments to the parties, in case there is no other legal impediment. (Shamim Ahmed, J.) Order Date :- 11.10.2023 A.Nigam High Court of Judicature at Allahabad, Lucknow Bench