Nayeem Alias Sanu v. State of U.P. Thru. Prin. Secy. Home Lucknow

Court No. - 27 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14077 of 2023 Applicant :- Nayeem Alias Sanu Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lucknow Counsel for Applicant :- Manoj Kumar Misra Counsel for Opposite Party :- G.A. Hon'ble Brij Raj Singh,J.

¶1Heard learned counsel for the applicant, Sri Mohd. Asif Khan, learned A.G.A. for the State and perused record.

¶2The present bail application has been filed by the applicant with a prayer to enlarge him on bail in case crime No.539 of 2023 under Section 376 IPC PS Colonelganj, district Gonda.

¶3Learned counsel for the applicant has submitted that FIR was lodged by the prosecutrix who is married lady of 22 years and her statement under Section 164 CrPC was recorded before the Court. In her statement, she has deposed that prior to one and half year, she was suffering from Dengu and had gone to pathology of applicant and she was asked by him to change her dress for pathological examination. Thereafter, her video was made and she was made to consume cold drink and thereafter, she became unconscious. She further levelled allegation that on

31.8.2023 again she was raped by the applicant.

¶4Learned counsel for the applicant has submitted that statement under Section 164 CrPC of the prosecutrix itself indicates that it is a case of consent because if anything wrong was done by the applicant to the prosecutrix prior to one and half year, then such report should have been lodged but the same was not lodged by her and again she had gone to the clinic of the applicant and allegation of rape was levelled which is totally false and without any basis. He has invited attention of this Court towards the CD-9 which is the conclusion of Investigating Officer in which he has stated that the prosecutrix and the applicant had relation together and the prosecutrix pressurized him for marriage that is why, this FIR has been lodged. He has further submitted that the FIR has been lodged after 11 days from the second cause of action. He has further submitted that medical report is not supporting the prosecution case. He has submitted that the applicant has no criminal history and he is in Jail since 12.9.2023.

¶5Learned A.G.A. opposed the prayer for bail and has submitted that statement of prosecutrix under Section 164 CrPC indicates that allegation of rape is levelled, therefore, bail should be rejected.

¶6Considering over all facts and circumstances of the case, the argument that it is a case of consent, the argument that first cause of action arose prior to one and half year but no FIR was lodged and the second cause of action also indicates that FIR has been lodged after 11 days and also the argument that medical report is not supporting the prosecution case, it is a fit case for bail.

¶7Let the applicant, Nayeem @ Sanu 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 sufficient cause, the trial court may proceed against him 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 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.

¶8It 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 :- 30.11.2023 Rajneesh JR-PS) High Court of Judicature at Allahabad, Lucknow Bench