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HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. – 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. – 22234 of 2021
Applicant :- Sarkar Mehandi
Opposite Party :- State of U.P.
Counsel for Applicant :- Devendra Saini
Counsel for Opposite Party :- G.A.
Hon’ble Samit Gopal,J.
Heard Sri Shivaji Singh Sisodia, learned counsel for the applicant, Sri Pankaj Mishra, learned brief-holder for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant-Sarkar Mehandi, seeking enlargement on bail during trial in connection with Case Crime No.28 of 2021, under Sections 323, 366, 376 I.P.C., registered at Police Station Kotwali CIty, District Bijnor.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the applicant is the Devar of the victim. The present FIR has been registered by the mother of the victim with an unexplained delay of about eight days as the incident in question is said to have taken place on 4.1.2021 whereas FIR has been registered on 12.1.2021. It is further argued that there has been previous litigations between the family of the applicant and the victim for which learned counsel for the applicant has placed annexure no.3 to 6 to the affidavit and has argued that an FIR was registered on 15.2.2019 as Case Crime No.155 of 2019 under Sections 498-A, 323, 506 I.P.C. and 3/4 D.P. Act registered at Police Station Kotwali Shahar, District Bijnore. It is further argued that another FIR was registered on 10.12.2019 as Case Crime No.603 of 2019 under Section 3/4 of Muslim Women (Protection of Rights on Marriage) Bill, 2019 at Police Station Dhampur, District Bijnore, copy of the same is annexed on page 22 of the affidavit. It is further argued that then an application under Section 156(3) Cr.P.C. was moved under Section 376 IPC which is dated 12.6.2020 and numbered as 201 of 2020, Gulnaz Fatima Vs. Gulam Mohammad and others, copy of the same is annexed on page 26 of the affidavit then another application under Section 156(3) Cr.P.C. was again moved which is dated 23.7.2020 and numbered as 1243 of 2020, Gulnaz Fatima Vs. Naseem Fatima and others, copy of the same is annexed on page 29 of the affidavit. The said cases are pending before the concerned courts after which the present FIR has been registered with malafide intention just in order to falsely implicate and harass the applicant. It is further argued that an application under Section 156(3) Cr.P.C. has been moved by the mother of the applicant against the victim of the present case and other family members under Section 323, 452, 307, 504, 506 I.P.C., which is dated 17.6.2020, Anees Fatima Vs. Gulnaz Fatima and others, copy of the same is annexed on page 50 as annexure no.12 to the affidavit which is pending in which five injuries were received by the mother of the applicant and injury report is annexed on page 53 and X-Ray examination is annexed on page 54 of the affidavit which shows dislocation of the right hand with wrist. The implication of the applicant is false. It is further argued that the story in the statements of the victim recorded under Section 161 and 164 Cr.P.C. is having variance with the version of the FIR and not trustworthy and only with the oblique motive to implicate the applicant. It has also been pointed out that the applicant is not having any criminal history as stated in para 23 of the affidavit and is in jail since 12.3.2021.
Per contra learned A.G.A. has opposed the prayer for bail and argued that the applicant is named in the FIR and also in the statement of the victim recorded under Section 161 Cr.P.C and 164 Cr.P.C. The applicant has been stated to commit rape upon the victim and as such prayer for bail be rejected.
After hearing the counsel for the parties and perusing the record, it is apparent that although the applicant is named in the FIR but there has been previous litigation between the parties arising out of matrimonial dispute and other disputes which are pending before the courts concern. Even mother of the applicant was assaulted for which an application under Section 156(3) Cr.P.C. was moved which is also pending in which she has received five injuries. The applicant is the Devar of the victim.
Looking to the facts and circumstances of this case, the nature of evidence, and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
Let the applicant-Sarkar Mehandi be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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., may be issued and if 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 I.P.C.
(v) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) 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 and the trial court may proceed against him under Section 229-A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
The bail application is allowed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
(Samit Gopal, J.)
Order Date :- 19.7.2021