Rizwan Alias Kuttoo v. State of U.P. Thru. Addl. Chief. Secy. Deptt. of Home, Lko. and Another

Court No. - 15 Case :- CRIMINAL APPEAL No. - 15 of 2023 Appellant :- Rizwan Alias Kuttoo Respondent :- State Of U.P. Thru. Addl. Chief. Secy. Deptt. Of Home, Lko. And Another Counsel for Appellant :- Brijesh Kumar Pandey,Vimal Kishor Singh,Vivek Kumar Srivastava Counsel for Respondent :- G.A.,Praveen Tripathi,Shakti Krishna Chaube Hon'ble Shamim Ahmed,J.

¶1Case is taken up in the revise call.

¶2As per the office report dated 14.03.2023 notice has already been served upon the opposite party No.2 but till date no counter affidavit has been filed on its behalf nor any counsel is present today to represent the opposite party No.2.

¶3Today when the case is taken up, there is no one present on behalf of opposite party No.2 neither any counter affidavit has been filed, as such, it appears that opposite party No.2 is 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 learned counsel for the appellant, Sri Ashok Kumar 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 06.12.2022 passed by learned Special Judge, SC/ST Act, Balrampur in Criminal Case No.124/2022 (Rizwan Alias Kattoo vs. State of U.P.) Case Crime No.325/2022, under Section 366 I.P.C. and Section 3(2)(v) SC/ST Act, Police Station-Kotwali Dehat, District-Balrampur, 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 enmity and village rivalry. No such incident, as alleged by the prosecution, took place. He further submits that initially the F.I.R. was lodged under Section 363 I.P.C. but there was no allegation of rape. He further submits that as per the prosecution case, the daughter of the complainant went missing on 06.10.2022 at midnight, the complainant alongwith other family members searched for her but they did not find her, thereafter, the complainant gave a written complaint to the concerned police station on which the present F.I.R. was lodged.

¶7He further submits that thereafter, the prosecutrix in her statement recorded under Section 161 and 164 Cr.P.C., on the pressure created by the police and her family members, developed her case and allegation of enticing her away with false promise of marriage was leveled, whereas, in the F.I.R. no such allegation was leveled against the appellant, thus, the statement of the victim recorded under Section 161 and 164 Cr.P.C. was afterthought and was given under the pressure created. In her statements, she clearly stated that she knew the appellant for more than three years and were in constant touch with him, thus, allegation of enticing her away against her wishes is false and fabricated. The prosecutrix was major at the time of incident and both the parties were consenting parties, there is no allegation of rape against the appellant.

¶8Several 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

13.10.2022 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

¶9Learned A.G.A-I opposed the prayer for bail, however, he is unable to dispute the contentions raised by learned counsel for the appellant.

¶10After 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., she has not made any allegation of rape against the appellant in the F.I.R. but she took somersault in the statement recorded under Section 161 and 164 Cr.P.C., wherein, allegation of enticing her away with false promise of marriage was leveled, whereas, in the F.I.R. no such allegation was leveled against the appellant, thus, the statement of the victim recorded under Section 161 and 164 Cr.P.C. was afterthought and was given under the pressure created. In her statements, she clearly stated that she knew the appellant for more than three years and were in constant touch with him, thus, allegation of enticing her away against her wishes is false and fabricated. The prosecutrix was major at the time of incident and both the parties were consenting parties, there is no allegation of rape against the appellant; there appears force in the argument of learned Counsel for the appellant that the prosecutrix and appellant were in physical relation with their consent 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.

¶11Accordingly, the appeal is allowed. Consequently, the impugned order dated 06.12.2022 passed by learned Special Judge, SC/ST Act, Balrampur in Criminal Case No.124/2022 (Rizwan Alias Kattoo vs. State of U.P.) Case Crime No.325/2022, under Section 366 I.P.C. and Section 3(2)(v) SC/ST Act, Police Station-Kotwali Dehat, District-Balrampur is hereby set aside and reversed.

¶12Let the appellant, Rizwan Alias Kuttoo be released on bail in Case Crime No.325/2022, under Section 366 I.P.C. and Section 3(2)(v) SC/ST Act, Police Station-Kotwali Dehat, 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.

¶13It 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.

¶14The 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 :- 13.12.2023 Piyush/- High Court of Judicature at Allahabad, Lucknow Bench