Allowed bail to applicant Firoz Khan in a rape case, noting the generic change of charge from outraging modesty. Directed trial conclusion within six months and strict witness attendance measures.
Release on bail with personal bond, two sureties, and conditions against tampering, threatening witnesses, or contacting the prosecutrix.
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Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48495 of 2018
Applicant :- Firoz Khan Opposite Party :- State Of U.P. Counsel for Applicant :- Pankaj Sharma Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is a bail application on behalf of the applicant Firoz Khan in connection with Case Crime No. 303 of 2018 under Section 376, 323, 504, 506 IPC, P.S. Govindnagar, District Mathura.
Heard Sri Pankaj Sharma, learned counsel for the applicant, Ms. Tahira Kazmi, Advocate who has filed her appearance in Court on behalf of the complainant and Sri Indrajeet Singh Yadav, learned AGA appearing on behalf of the State.
The submission of learned counsel for the applicant is that in the FIR lodged, the allegation against the applicant is one of outraging the modesty of the prosecutrix but subsequently in the statements under Sections 161 & 164 Cr.P.C., the charge has been generically changed to one of rape. The submission is, therefore, that the aforesaid generic change in the prosecution case of outraging the modesty to a case of rape makes the prosecution undependable and wavering on the basis of which the applicant cannot be confined to jail pending trial.
Ms. Tahira Kazmi, learned counsel appearing on behalf of the complainant has vehemently opposed the prayer for bail and submits that there could be many reasons for a woman not to come out straightway with an allegation of rape, and mellow it down in the FIR, on account of social strain on the reputation, for herself and her family. She has emphasized that the applicant is a neighbour and a goonda who has been harassing the prosecutrix and her family in diverse ways all along. She has referred to the statement under Section 164 Cr.P.C., where the applicant has threatened the prosecutrix with an assault by acid to her face.
Learned AGA has also opposed the prayer for bail. Upon a question being put to the learned AGA whether the
applicant has any criminal history, learned AGA, on the instruction received, says that the applicant has no criminal history.
Considering the overall facts and circumstances, the nature of allegations, the gravity of offence, the severity of the punishment, the evidence appearing against the accused, in particular, the fact that the case taken in the FIR is one of outraging the prosecutrix's modesty that has been, lateron, improved with a generic change to one of rape in the statements under Sections 161 & 164 Cr.P.C., but without expressing any opinion on merits, this Court finds it to be a fit case for bail.
Accordingly, the bail application stands allowed.
Let the applicant Firoz Khan involved in Case Crime No. 303 of 2018 under Section 376, 323, 504, 506 IPC, P.S. Govindnagar, District Mathura be released on bail on executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:
i) The applicant shall not tamper with the prosecution evidence.
ii) The applicant shall not threaten or harass the prosecution witnesses.
iii) The applicant shall appear on the date fixed by the trial court.
iv) The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission.
v) The applicant 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 such person from disclosing facts to the Court or to any police officer or tamper with the evidence.
vi) The applicant shall not contact telephonically, or otherwise come close to the prosecutrix or to her family in a manner that my be intimidative.
In case of default of any of the conditions enumerated above, the complainant would be free to move an application for cancellation of bail before this Court.
The trial court is directed to expedite proceedings and conclude the trial as expeditiously as possible within six
months next from the receipt of a certified copy of this order in accordance with Section 309 Cr.P.C. and in view of principle laid down in the recent judgment of Hon'ble Supreme Court in the case of Vinod Kumar vs. State of Punjab reported in 2015 (3) SCC 220 , if there is no legal impediment.
It is made clear that in case the witnesses are not appearing, the concerned court is directed to initiate strict coercive measure for ensuring their presence. Once, the witnesses appear, they will not be discharged until their evidence is recorded.
Let a copy of the order be certified to the court concerned for necessary compliance.
Order Date :- 18.12.2018
Deepak
2 issues framed by the court
Whether the generic change in prosecution case from outraging modesty to rape makes the case fit for bail.
Whether the trial court is directed to expedite proceedings within six months under Section 309 Cr.P.C.
Colour shows how this judgement treated each authority
Vinod Kumar vs. State of PunjabReferred¶22
Vinod Kumar vs. State of Punjab reported in 2015 (3) SCC 220 · Who else cites this
2 provisions across 2 enactments
Firoz Khan
Munir
Jagannath
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
Munir and Jagannath
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