Allowed

Fazal Ahamad v. State of U.P. and Another

Allahabad HC15 Jul 2021CRLA/515/2021

Case brief

AI extract

What is this about?

The High Court allowed this criminal appeal and set aside the order rejecting the appellant's bail. The Court held that the lower court illegally ignored evidence of a decade-long relationship and the existence of a sale deed, ruling that the nature of the relationship and whether rape occurred must be decided during trial.

What did the court decide?

Bail allowed in Case Crime No. 351 of 2020 on furnishing a personal bond and two sureties, subject to conditions to appear for trial and not tamper with evidence.

Fazal Ahamad Vs State of U.P. and Another — Bail and Remand | Allahabad HC (2021)

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Court No. - 74

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Case :- CRIMINAL APPEAL No. - 515 of 2021 Appellant :- Fazal Ahamad Respondent :- State of U.P. and Another Counsel for Appellant :- Mukesh Kumar Pandey Counsel for Respondent :- G.A.,Anjum Haq

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Hon'ble Pradeep Kumar Srivastava,J.

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Heard learned counsel for the parties and perused the record.

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This criminal appeal has been filed by the appellant Fazal Ahamad with a prayer to set aside the judgment and order dated 06.01.2021, passed by Special Judge SC/ST Act, Jhansi, in Criminal Misc. Bail Application No. 2062 of 2020, arising out of Case Crime No. 351 of 2020, under Sections 420, 452, 376, 323, 506 I.P.C. and Section 3(2)(V) SC/ST Act, Police Station Babina, District Jhansi, whereby the bail application of the appellant has been rejected.

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Aggrieved by the bail rejection order, the present appeal has been filed on the ground that the impugned order is bad on facts and law. Evidence of the appellant was completely overlooked and ignored and order was passed against the evidence on record. The accused-appellant has been falsely implicated in the present case. Respondent no. 2 herself had got attempted herself her children in the school at Jhansi by her own signature and the entrance application was not signed by the appellant and respondent no. 2 has been registered as guardian. The appellant had purchased a plot and gave it to respondent no. 2 and constructed a house on that plot in which appellant, respondent no. 2 and their children were living together. In the registered sale deed, respondent no. 2 has accepted him to be her husband. The appellant's first wife Shabana gave birth to a son and thereafter, the victim pressurized the appellant to give her divorce for which the appellant was not ready. On this ground,

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respondent no. 2 was always quarreling with him and she got registered the said first information report.

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On 11.02.2020, similar kind of application was sent by respondent no. 2 to S.P. and the matter was investigated and concluded that both are husband and wife and plot was purchased and house was constructed on it. The relatives of respondent no. 2 used to visit her house regularly to which the appellant opposed and the appellant was regularly pursuing the case against Amrit Lal @ Kali Charan which was for dowry death. The respondent no. 2 used to pressurized him for a compromise in the case. He married with the respondent on her saying that she had already divorced her first husband Kishori and because she has herself to be helpless, the appellant married with her in Orcha Temple in the year 2010 and also solemnize Nikah and both were living in rental house as husband and wife and one girl child Muskan was born in the year 2012. There was no question of her rape committed by the husband. He is in jail from the more than one and half years. The witnesses are not independent and are highly interested.

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The first information report was lodged by respondent no. 2 with the allegation that the appellant committed deception and promise to marry her and sexually abused her on account of that promise and forced her for conversion and to become Muslim. He committed rape by threatening and by rape a daughter was born. He converted her minor children to Islam and got admitted in school showing Muslim religion. He also committed maar-peet with her and he took forcefully her daughter for studying in Madarsa. He regularly exploited her. Both were living as husband and wife and she made false allegation of rape on her. The submission of the learned counsel for the appellant is that the court below has illegally rejected the bail application of the appellant.

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Learned A.G.A. has vehemently opposed the the prayer and has submitted that the impugned order has been passed by the learned court below after considering all the relevant facts and there is no illegality in the impugned order.

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It is clear from the record that both appellant and respondent no. 2 were in relationship from the year 2010. The first information report has been lodged on 09.12.2020 and it is mentioned in the first information report that offence continued w.e.f. December, 2011 to March 2020. For about ten years, this relationship continued. They lived together as husband and wife and it cannot be believed at this stage, nor it is natural that she lived with him because of some threatening. The photo-stat copy of the sale deed is on record and it shows that the land had been purchased in the name of respondent no. 2 and as alleged by the appellant, that house was constructed thereon by him in which both were living peacefully. It appears that subsequently some matrimonial dissatisfaction arose between them which resulted in this kind of first information report. The photocopy of the alleged sale deed is on record which shows that the respondent no. 2 has been mentioned as wife of the appellant. The sale deed has been registered in the year 2014. The appellant has also filed a suit of conjugal rights before the family court against the respondent no 2 which has been filed early in point of time on 17.01.2020, whereas, the first information report has been filed in December, 2020.

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The I.O. has submitted a report to the effect prior to the date of first information report that both are in live-in relationship and appellant had purchased a plot in the name of respondent no. 2 and had opened a savings bank account on her name and used to deposit money but when he came to know that in the bank account in place of husband name of the first husband has been mentioned, he opposed it and thereafter the relationship was

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deteriorated. The number of documentary affidavits are annexed with the appeal showing their good relationship. In such circumstances. it hardly suits to reasoning that the appellant committed rape on her and if the alleged marriage between the two is ignored, even then there is ample proof on record to say that they were in a consented relationship. The relationship was marital relationship, live-in relationship or the rape was committed is to be determined by the trial court during trial and the facts are yet to be established.

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The learned court below has ignored all these aspects and went through the fact that respondent no. 2 is a woman of SC community and accusation has been made by her that rape was committed by the appellant. There appears to be apparent illegality in the impugned order and the order is not sustainable under law and is liable to be set aside. I find that the learned court below has erred in rejected the bail application. The impugned order suffers from infirmity and illegality and the same is liable to be set aside and the appeal is liable to be allowed.

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Accordingly, the appeal is allowed and the impugned order dated 06.01.2021, passed by Special Judge SC/ST Act, Jhansi, in Criminal Misc. Bail Application No. 2062 of 2020 is hereby set aside.

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Let the appellant namely Fazal Ahamad involved in Case Crime No. 351 of 2020, under Sections 420, 452, 376, 323, 506 I.P.C. and Section 3(2)(V) SC/ST Act, Police Station Babina, District Jhansi is granted bail on his furnishing a personal bond and two sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions:-

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(i) The appellant will co-operate with the trial and remain present personally on each and every date fixed for framing of

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charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that appellant is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.

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(ii) The appellant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.

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(iii) The appellant will not indulge in any unlawful activities.

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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 appellant to prison.

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Order Date :- 15.7.2021 sailesh

Fazal Ahamad v. State of U.P. and Another

Case brief

What is this about?

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Fazal Ahamad v. State of U.P. and Another

Case brief

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