Allowed

Fazal Khan v. State of U.P.

Allahabad HC17 Dec 2020BAIL/41398/2020

Case brief

AI extract

What is this about?

In a bail application regarding an FIR under Section 376 IPC and POCSO, the Single Judge found that the applicant made out a case for bail considering the nature of evidence and the victim's alleged consent. Bail was allowed on personal bond subject to strict conditions and released immediately without sureties.

What did the court decide?

Ordering release on bail via personal bond with conditions to file sureties within a month of court restoration and strict adherence to trial appearance.

Fazal Khan Vs State of U.P. — Child Sexual Offences (POCSO) | Allahabad HC (2020)

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Court No. - 67

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41398 of 2020

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Applicant :- Fazal Khan Opposite Party :- State of U.P. Counsel for Applicant :- Radhey Shyam Shukla,Vipul Shukla Counsel for Opposite Party :- G.A.,Jitendra Singh

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Hon'ble Rahul Chaturvedi,J.

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Heard Sri Radhey Shyam Shukla, 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. 232 of 2020, under Sections 363, 366 and 376 IPC and Section 3/4 Protection of Children from Sexual Offence Act, 2012, Police Station-Jalalabad, District-Shahjahanpur and is in jail since 02.06.2020.

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Submission of learned counsel for the applicant is that F.I.R. has been lodged on 13.05.2020 by the informant Smt. Munni, (mother of victim) under Sections 363, 366 IPC against the applicant and two others. As per F.I.R. version, when her daughter went to attend the call of nature she was enticed away by the applicant and two others. The girl was recovered on 02.06.2020 and after recovery section 376 IPC was added. On 07.06.2020, her statement was recorded under Section 161 Cr.P.C. in which she has stated that her age is about 23 years and she went along with the applicant on her sweet will and she wants to marry with applicant but her parents were not agreed. It is further submitted that as per medical report her age is found to be 19 years. In her statement recorded under Section 164 Cr.P.C. she has stated that she is acquaintance with the applicant for last 8-9 years. It is next submitted that from perusal of the statement of victim, it appears that victim is a consenting party and applicant is innocent and has been falsely

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implicated in this case.

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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 Fazal Khan , 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 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 :- 17.12.2020 Pr/-

Fazal Khan v. State of U.P.

Case brief

What is this about?

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Fazal Khan v. State of U.P.

Case brief

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