Mohd. Jaseem v. State of U.P. Thru. Prin. Secy. Home, Lko. and Another

Citation No. - 2023:AHC-LKO:70276 Court No. - 15 Case :- CRIMINAL APPEAL No. - 111 of 2023 Appellant :- Mohd. Jaseem Respondent :- State Of U.P. Thru. Prin. Secy. Home, Lko. And Another Counsel for Appellant :- Bahar Ali,Rajiv Raman Srivastava Counsel for Respondent :- G.A.,Kashi Ram,Prem Chandra Chauhan Hon'ble Shamim Ahmed,J.

¶1Case is taken up in the revise call.

¶2On 19.09.2023, this Court has passed the following order:- "Counter affidavit on behalf of the State-opposite party No.1 is already on record. Learned Counsel for the appellant prays for and is granted three days' time to file rejoinder affidavit in reply to the counter affidavit filed on behalf of the State-opposite party No.1. As per the office report dated 17.02.2023 notice has already been served upon opposite party No.2 but till date no counter affidavit has been filed on behalf of the opposite party No.2, however, the name of Shri Kashi Ram, Advocate and Shri Prem Chandra Chauhan, Advocate has been printed as counsel for the opposite party No.2. As a last opportunity, learned Counsels for the opposite party No.2 are granted ten days' and no more further time to file counter affidavit on behalf of opposite party No.2. Three days' time thereafter shall be available to learned Counsel for the appellant for filing rejoinder affidavit. Accordingly, list/put up this case on 16.10.2023."

¶3Thereafter, the case has been listed twice and when the case is taken up in the revise call, there is no one present on behalf of respondent No.2 neither any counter affidavit has been filed, as such, it appears that opposite party No.2 or learned Counsel for the opposite party No.2 are not interested in contesting this case. Since the matter pertains to bail and learned counsel for the appellant presses urgency in the matter, therefore, this Court has no other option but to proceed for final arguments to decide the present appeal.

¶4Heard Mr. Adarsh Shukla, Advocate, holding brief of Mr. Rajiv Raman Srivastava, learned counsel for the appellant, Ms. Charu Singh, learned A.G.A-I for the State and perused the entire record.

¶5This Criminal Appeal under Section 14-A (ii) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 22.12.2022 passed by learned Special Judge, SC/ST Act, Lucknow, in Bail Application No.11350/2022, "Mohd. Jaseem vs. State of U.P., arising out of Case Crime No.511/2022, under Sections 376, 506 I.P.C. and Section 3(2)(V) of SC/ST Act, registered at, Police Station-Gudamba, District-Lucknow, whereby the bail application of the appellant has been rejected.

¶6Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case due to some enmity. No such incident, as alleged by the prosecution, took place. He further submits that the entire allegations as leveled in the F.I.R. are false and fabricated and the F.I.R. was lodged only with the intention defame the appellant in the society. He further submits that an amount of Rs.65,000/- was taken from the appellant by the husband of the prosecutrix, which was not paid back to the appellant. The said amount was paid to the husband of the prosecutrix on 20.01.2022 regarding purchase of plot and when the husband of the prosecutrix could not pay the said amount, the present F.I.R. has been lodged by the prosecutrix against the appellant on false allegation that the appellant tried to commit rape upon the prosecutrix. He further submits that the prosecutrix herself has admitted this fact that the husband of the prosecutrix and the appellant were friends.

¶7He further submits that thereafter, the prosecutrix in her statement recorded under Section 161 and 164 Cr.P.C. has almost repeated the same version of the F.I.R. He further submits that the present F.I.R. was lodged after a delay of almost 65 days as the alleged incident took place on 18.09.2022 and the F.I.R. was lodged on 28.11.2022. He further submits that in the medical report nothing has come forward to indicate involvement of the appellant in the commission of the offence as alleged by the prosecutrix and the medical report as well as supplementary medical report does not support the prosecution case.

¶8Learned Counsel for the appellant further submits that the present F.I.R. has been lodged against the appellant only with the intention to get some financial aid from the State Exchequer as the appellant belongs to upper caste and the prosecutrix belongs to SC/ST category.

¶9Several 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

30.11.2022 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

¶10Learned A.G.A. opposed the prayer for bail, however, he is unable to dispute the contentions raised by learned counsel for the appellant.

¶11After 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 the fact that there are contradictions in the statement of victim recorded under Sections 161 and 164 Cr.P.C. and the version of the F.I.R., that an amount of Rs.65,000/- was taken from the appellant by the husband of the prosecutrix, which was not paid back to the appellant. The said amount was paid to the husband of the prosecutrix on

20.01.2022 regarding purchase of plot and when the husband of the prosecutrix could not pay the said amount, the present F.I.R. has been lodged by the prosecutrix against the appellant on false allegation that the appellant tried to commit rape upon the prosecutrix and after perusal of the medical report, as per the opinion of doctor, there is no major internal or external injury found on the person of the prosecutrix and her age was found to be 27 years 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.

¶12Accordingly, the appeal is allowed. Consequently, the impugned order dated 22.12.2022 passed by learned Special Judge, SC/ST Act, Lucknow, in Bail Application No.11350/2022, "Mohd. Jaseem vs. State of U.P., arising out of Case Crime No.511/2022, under Sections 376, 506 I.P.C. and Section 3(2)(V) of SC/ST Act, registered at, Police Station-Gudamba, District-Lucknow is hereby set aside and reversed.

¶13Let the appellant, Mohd. Jaseem be released on bail in the Case Crime No.511/2022, under Sections 376, 506 I.P.C. and Section 3(2)(V) of SC/ST Act, registered at, Police Station-Gudamba, District-Lucknow 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.

¶14It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the prayer for bail and must not be construed to have any reflection on the ultimate merit of the case.

¶15The 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. Order Date :- 27.10.2023 Piyush/- High Court of Judicature at Allahabad, Lucknow Bench