Allowed

Mohd. Aleem @ Chhotu @ Aleem v. State of U.P. Thru. Prin. Secy. Home Lko.and Ors.

Allahabad HC22 Sept 2022/14725/2021

Case brief

AI extract

What is this about?

Single judge allowed bail to the accused accused of rape and kidnapping under IPC and POCSO, observing it is a fit case considering prima facie facts and settled judicial precedents regarding bail jurisprudence.

What did the court decide?

Accused released on bail on personal bond and two sureties subject to conditions against witness tampering and ensuring attendance in court.

Mohd. Aleem @ Chhotu @ Aleem Vs State of U.P. Thru. Prin… — Bail and Remand | Allahabad HC (2022)

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Court No. - 29

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14725 of 2021

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Applicant :- Mohd. Aleem @ Chhotu @ Aleem Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko.And Ors. Counsel for Applicant :- Ashish Raman Mishra,Santosh Kumar Tripathi Counsel for Opposite Party :- G.A.,Qazi Mohd.Ahmad

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Hon'ble Sanjay Kumar Pachori,J.

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Heard Sri Ashish Raman Mishra, learned counsel for the applicant, Sri Qazi Mohd. Ahmad, learned counsel for the first informant and Sri Vibhav Mishra, learned Brief Holder for the State and perused the material on record.

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Despite the service upon opposite party no. 2/first informant, none has appeared on his behalf.

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The present bail application has been filed by the applicant Mohd. Aleem alias Chhotu alias Aleem under section 439 of the Code of Criminal Procedure to release him on bail in Case Crime No. 227 of 2021 under sections 363, 366, 376(3) of I.P.C., section 3/4 of the Protection of Children from Sexual Offences Act 2012 (hereinafter referred as 'POCSO Act') and section 66-E of Information Technology Act, P.S. Nawabganj, District Gonda, during pendency of trial.

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Brief facts of the case are that the first information report dated 4.8.2021 has been lodged against the applicant and three other named persons by mother of the victim under section 376, 323, 506 of I.P.C. and section 3/4 of the POCSO Act stating that the present applicant on the pretext of marriage with her daughter/victim had been committing rape with her and he denied to solemnize marriage with her. When the informant went to the house of applicant for making complaint, they threatened her with dire consequences.

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After lodging of the first information report statement of the victim under section 161 Cr.P.C. has been recorded on 4.8.2021. Statement of the victim recorded under section 164, Cr.P.C. is on 9.8.2021. Medical examination of the victim was conducted on 5.8.2021. After recording the witness of other prosecution witnesses charge sheet has been submitted against the applicant and other co-accused persons on 6.9.2021. The applicant was arrested on 10.8.2021.

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Learned counsel for the applicant submits that the applicant is innocent and he has been falsely implicated in the present case due to ulterior motive. It is further submitted that as per

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allegation in the F.I.R. as well as statement of the victim recorded under section 161 Cr.P.C. there is no date and time about the offence against the applicant. It is further submitted that as per statement of the victim recorded under section 164, Cr.P.C. she first time mentioned the date of offence as 20.7.2021. The F.I.R. has been lodged after delay of 14 days of the incident. It is further submitted that as per radiological examination age the victim was 18-19 years at the time of inicident. There is allegation of false promise of marriage only. The applicant is languishing in jail since 10.8.2021. The applicant has no criminal history.

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Learned Brief Holder for the State as well as the learned counsel has the first informant vehemently opposed the prayer of bail.

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After considering the facts of the present case it prima facie appears that -

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(a) The applicant was 18-19 years of age at the time of the incident as per radiological report; and

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(b) As per the prosecution case the applicant committed rape with the victim on false promise of marriage.

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It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.

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Taking into account the totality of facts and keeping in mind the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308 , Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429 , Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598 , Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118 , the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.

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Let applicant, Mohd. Aleem alias Chhotu alias Aleem be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the

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like amount to the satisfaction of the court concerned subject to the following conditions:

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(i) 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 him from disclosing such facts to the court or to any police officer or tamper with the evidence.

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(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.

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(iii) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 of Cr.P.C.

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(iv) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in the trial court.

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(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.

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(vi) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

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In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that 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 in accordance with law.

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The trial court may make all possible efforts/endeavor and try to conclude the trial expeditiously in accordance with law after the release of the applicant, if there is no other legal impediment.

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It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.

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The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant along-with a self attested identity

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proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.

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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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( Sanjay Kumar Pachori, J.)

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Order Date :- 22.9.2022 A.Nigam

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Digitally signed by ANUJ NIGAM Date: 2022.09.26 11:10:17 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Mohd. Aleem @ Chhotu @ Aleem v. State of U.P. Thru. Prin. Secy. Home Lko.and Ors.

Case brief

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What did the court decide?

Mohd. Aleem @ Chhotu @ Aleem v. State of U.P. Thru. Prin. Secy. Home Lko.and Ors.

Case brief

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