Moh. Ashraf v. State of U.P. Thru. Prin. Secy. Home Lko

Court No. - 27 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6439 of 2023 Applicant :- Moh. Ashraf Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Smriti Counsel for Opposite Party :- G.A. Hon'ble Brij Raj Singh,J.

¶1Heard Ms. Smriti, learned counsel for the accused-applicant as well as learned A.G.A. for the State and perused the record.

¶2This bail application has been filed seeking release of the accused/applicant Moh. Ashraf on bail, who is involved in Case Crime No. 74 of 2023 under Sections 323, 342, 366, 376, 406, 427, 452, 504, 506 I.P.C, Police Station Kotwali Nagar, District Sultanpur.

¶3Learned counsel for the applicant has submitted that the First Information Report was lodged by the husband of the prosecutrix, wherein it is mentioned that on 26.01.2023, the wife of complainant was abducted by the applicant. He further invited attention of the Court towards the statement of prosecutrix recorded under Section 164 Cr.P.C, wherein she has deposed that she is a married lady and the applicant used to talk to her on phone and even asked her to marry him. She further deposed that out of threat, the applicant committed rape on her on

24.01.2023, thereafter, he had taken her to the house of his mother's sister (mausi) and established physical relation with her. She further stated that on 26.01.2023, she was driven by him on a vehicle towards Lambhua and he again took her to the house of his mother's sister, thereafter he took her to a hotel in Lucknow and committed rape on her for four days. Learned counsel for applicant further submitted that in the statement of prosecutrix under Section 164 Cr.P.C, she has stated that she was taken to various places by the applicant but she did not raise any alarm against the same, which clearly indicates that she was a consenting party. He further stated that the age of prosecutrix is 37 years and it is a case of consent.

¶4Learned counsel for applicant has annexed certain photographs (Annexure No. 7), which indicates that it was an intimate relationship and the offence under Section 375 I.P.C is not made out, as the physical relation was established out of consent. He further stated that there is no previous criminal history of the applicant and he is languishing in jail since 04.03.2023.

¶5Learned A.G.A has opposed the prayer of bail of the applicant and has submitted that statement of prosecutrix under Section 164 Cr.P.C indicates that the applicant committed sexual offence against the prosecutrix out of threat, therefore, the bail is liable to be rejected.

¶6Considering the facts and circumstances of the case, perusing the record, also considering the nature of allegations, arguments advanced by the learned counsel for the parties, the argument that it is a case of consent, the argument that prosecutrix did not raise any alarm neither in the house of mother's sister (mausi) of the applicant nor in the hotel, the argument that the prosecutrix is a married lady of 37 years, I find it to be a fit case for grant of bail.

¶7Accordingly, the bail application is allowed.

¶8Let the applicant Moh. Ashraf be released on bail in the above case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of Court concerned with the following conditions :-

(i) 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.

(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufÏcient cause, the trial court may proceed against her under Section 229-A of the Indian Penal Code.

(iii) 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.

(iv) 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 sufÏcient 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.

¶9It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The Trial Court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything in this order. Order Date :- 12.10.2023 DiVYa High Court of Judicature at Allahabad, Lucknow Bench