Allowed

Mohammad Afgan v. State of U.P.

Allahabad HC9 Dec 2020BAIL/31358/2020

Case brief

AI extract

What is this about?

The Court allowed a bail application under Section 376(D) IPC. It relied on Article 21 and a Supreme Court precedent, citing witness contradictions and domestic disputes. Bail granted without immediate sureties due to court dysfunction, subject to strict conditions.

What did the court decide?

Released on bail with a personal bond; sureties to be furnished within a month after normal court functioning is restored. Strict conditions imposed to prevent abuse of liberty and ensure swift trial

Mohammad Afgan Vs State of U.P. — Bail and Remand | Allahabad HC (2020)

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Court No. - 67

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31358 of 2020

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Applicant :- Mohammad Afgan Opposite Party :- State of U.P. Counsel for Applicant :- Hemant Kumar Singh Counsel for Opposite Party :- G.A.

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Hon'ble Rahul Chaturvedi,J.

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Heard learned counsel for the applicant, learned A.G.A. and also perused the record.

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The applicant is facing prosecution in Case Crime No. 395 of 2019, under Sections 376(D), 365 I.P.C., Police Station-Kotwali Sadar, District-Azamgarh and is in jail since 08.12.2019.

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Contention raised by the counsel is that the applicant is husband of the victim and the F.I.R. was got registered by father-in-law. Initially the F.I.R. was got registered under Section 365 I.P.C., but as the investigation has progressed, Section 376(D) I.P.C. was added amongst the array of the sections. Learned counsel for the applicant has drawn the attention of the Court to the Section 161 Cr.P.C. statement and Section 164 Cr.P.C. statement of the victim. No doubt the husband and wife are at the warring ends and the husband is facing proceeding under the Domestic Violence Act initiated by his own wife (the victim). She has levelled the allegation of rape upon her own husband. In Section 161 Cr.P.C. statement and Section 164 Cr.P.C. statement she has made a major shift in her stand adding four more persons for committing a gang rape upon her. She is aged about 25 years and she is married with the applicant. Nothing abnormal was detected in the medical examination. It has been contended by the counsel that the present F.I.R. is nothing but twisting of the arm of the husband to make him kneel down.

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Learned A.G.A. has opposed the prayer for bail.

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Keeping in view the nature of the offence, evidence on record regarding complicity of the accused, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018)3 SCC 22 and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

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Let the applicant Mohammad Afgan , who is involved in aforementioned case be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.

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(i) 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.

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(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 IPC.

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(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., 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 IPC.

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(iv) 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.

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(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

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In case of breach of any of the above conditions, it shall be a

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ground for cancellation of bail.

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It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.

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Since the bail application has been decided under extra-ordinary circumstances, thus in the interest of justice following additional conditions are being imposed just to facilitate the applicant to be released on bail forthwith. Needless to mention that these additional conditions are imposed to cope with emergent condition-:

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The applicant shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored.

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The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

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The computer generated copy of such order shall be self attested by the counsel of the party concerned.

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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.

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However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

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Order Date :- 9.12.2020 Sunil Kr. Gupta

Mohammad Afgan v. State of U.P.

Case brief

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Mohammad Afgan v. State of U.P.

Case brief

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