Maksood v. State of U.P. Thru. Prin. Secy. Home, Lucknow and Another

Court No. - 15 Case :- CRIMINAL APPEAL No. - 1789 of 2023 Appellant :- Maksood Respondent :- State Of U.P. Thru. Prin. Secy. Home, Lucknow And Another Counsel for Appellant :- Rahul Mishra,Kailash Nath Mishra Counsel for Respondent :- G.A. Hon'ble Shamim Ahmed,J.

¶1The case is taken up in the revised call.

¶2Heard Sri Kailash Nath Mishra, learned counsel for the appellant as well as Veer Bhan Singh, learned A.G.A. for the State-opposite party No. 1 and perused the entire record.

¶3This Court vide order dated 31.05.2023 issued notice to opposite party No.2.

¶4As per the office report dated 03.07.2023 notice has already been served upon the opposite party No. 2 personally, but no counter affidavit has been filed. Thereafter, this Court vide order dated

27.07.2023 passed the following order: "Learned A.G.A. has filed counter affidavit today in Court,

which

is

taken

on

record.

Learned counsel for the appellant prays for and is allowed ten days' time to file rejoinder affidavit. As per the office report dated 03.07.2023 notice has already been served upon the opposite party No. 2, but till date neither any counsel has appeared nor any counter affidavit has been filed on her behalf. As a last opportunity, ten days' and no more time is allowed to the opposite party No. 2 to file counter affidavit. Three days, thereafter, is allowed to the learned counsel for the appellant to file rejoinder affidavit. Put up this case on 21.08.2023 before appropriate Court."

¶5Learned A.G.A. has filed counter affidavit and in reply thereto learned counsel for the appellant has filed rejoinder affidavit.

¶6Today when the case is taken up, neither any counsel has appeared on behalf of opposite party No. 2 nor counter affidavit has been filed on her behalf. It appears that the opposite party No.2 is not interested to file any counter affidavit.

¶7In the above circumstances, as the matter pertains to bail this Court has no option but to proceed for final arguments to decide the present appeal.

¶8The present criminal appeal under Section 14-A (2) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 03.04.2023 passed by the court of Special Judge S.C./S.T. Act/Additional Session Judge Balrampur in Bail Application No.58/2023: Maksood Vs. State of U.P. arising out of Case Crime No. 24/2023, under Sections 366, 376 I.P.C. and Section 3(2) (v) of S.C./S.T. Act, Police Station Mahrajganj Tarai, District Balrampur, whereby the bail application of the appellant has been rejected.

¶9Learned counsel for the appellant submits that the appellant is innocent and has been falsely implicated in the present case.

¶10Learned counsel for the appellant submits that as per alleged made in the F.I.R. it was stated by the complainant that the daughter of the complainant went with the appellant with the help of the co-accused

¶11Learned counsel for the appellant further submits that initially F.I.R. was lodged under Sections 363, 504 I.P.C. and under Section 3(1) (x) (dha) against two persons i.e. wife of Tulsiram, name not known and one unknown person, wherein the applicant's name does not find place.

¶12Learned counsel for the appellant further submits that when the victim was recovered, her statement under Section 161 Cr.P.C. was recorded in which she has clearly admitted her age as 18 years and has stated that she went with the appellant on her own sweet will to Gonda, thereafter she was planning to go to Tulsipur on the way the appellant fled away.

¶13Learned counsel for the appellant further submits that the victim in her statement recorded under Section 164 Cr.P.C. on the pressure created by the family members and police took somersault and made an allegation of forceful physical relation against the appellant and Section 376 I.P.C. was inserted.

¶14Learned counsel for the appellant further submits that no such incident took place as alleged by the vicitm. He further submits that the there is a love affairs with the appellant and vicitm has admitted her age to be 18 years, thus she is major and from the statement of the victim, the parties appears to be consenting parties.

¶15Learned counsel for the appellant further submits that the victim has refused for her internal and external medical examination, thus in absence of any internal and external medical examination it cannot be said that the appellant has committed any wrong act or made forceful physical relation with the victim. The refusal is already filed as Annexure 5 to the affidavit filed in support of the bail application.

¶16Learned counsel for the appellant further submits that the entire prosecution story is false and fabricated and the F.I.R. has been lodged with intention to defame the image of appellant and his entire family in the society.

¶17Learned counsel for the appellant further submits that accused/appellant is languishing in jail since 11.03.2023, who has no previous criminal history, and in case the appellant is enlarged on bail, he shall not misuse the liberty of bail and he shall also fully cooperate with the trial. He has further submitted that there is no possibility of the appellant to intimidate or pressurize the witnesses or any other persons acquainted with the facts of the present case.

¶18Several 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 11.03.2023 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

¶19For the aforesaid reasons, learned counsel for the appellant submits that the instant criminal appeal deserves to be allowed and the order dated 03.04.2023 passed by the court of Special Judge S.C./S.T. Act/Additional Session Judge Balrampur in Bail Application No.58/2023: Maksood Vs. State of U.P. arising out of Case Crime No. 24/2023, under Sections 366, 376 I.P.C. and Section 3(2) (v) of S.C./S.T. Act, Police Station Mahrajganj Tarai, District Balrampur deserves to be set aside and consequently, the accused/appellant deserves to be enlarged on bail during pendency of the trial.

¶20Per contra, learned A.G.A. has vehemently opposed the prayer by submitting that there is active participation of accused/appellant in the crime. Therefore, the accused/ appellant is not entitled to be enlarged on bail and the instant criminal appeal deserves to be dismissed. However, he has been unable to dispute the other factual submissions advanced by the learned counsel for the accused/appellant.

¶21After 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, unlikelihood of early conclusion of trial and also in absence of any convincing material to indicate the possibility of tampering with the evidence and considering the fact that the appellant is not named in the F.I.R. and there appears force in the argument of learned counsel for the appellant that the victim in her statemetn has clearly admitted her age as 18 years and she has also stated that she went with the appellant on her own sweet, thus the parties appears to be consenting parties; there also appears force in the argument of learned counsel for the appellant that the victim has refused for her internal and external medical examination, thus in absence of any internal and external medical examination it cannot be said that the appellant has committed any wrong act or made forceful physical relation with the victim and further considering the fact that appellant is in jail since 11.03.2023 and has now by done a substantial period of detention 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 impugned order passed by the trial court is liable to be set aside.

¶22Accordingly, the appeal is allowed. Consequently, the order dated 03.04.2023 passed by the court of Special Judge S.C./S.T. Act/ Additional Session Judge Balrampur in Bail Application No.58/2023: Maksood Vs. State of U.P. arising out of Case Crime No. 24/2023, under Sections 366, 376 I.P.C. and Section 3(2) (v) of S.C./S.T. Act, Police Station Mahrajganj Tarai, District Balrampur is hereby reversed and set aside.

¶23Let the appellant, Maksood, be enlarged on bail in Case Crime No. 24/2023, under Sections 366, 376 I.P.C. and Section 3(2) (v) of S.C./S.T. Act, Police Station Mahrajganj Tarai, District Balrampur 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.

¶24It 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.

¶25The trial court is also directed to expedite the trial of the aforesaid case, within a period of one year from today, 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 :- 17.11.2023 Arvind High Court of Judicature at Allahabad, Lucknow Bench