Allowed

Mohd. Afzal v. State of U.P Thru. Prin. Secy. Home and Ors.

Allahabad HC18 Feb 2022/1530/2022

Case brief

AI extract

What is this about?

Honble Shamim Ahmed, J. allowed criminal bail application filed by Mohd. Afzal in an FIR alleging offenses under Sections 376, 506, and 406 IPC. The Court found contradictions in the (F.I.R.) and reliance on the medical report favored the applicant, granting bail on conditions.

What did the court decide?

The applicant Mohd. Afzal was enlarged on bail on executing a personal bond and two sureties on specified conditions.

Mohd. Afzal Vs State of U.P Thru. Prin. Secy. Home and Ors. — Bail and Remand | Allahabad HC (2022)

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Court No. - 34 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1530 of 2022

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Applicant :- Mohd. Afzal Opposite Party :- State Of U.P Thru. Prin. Secy. Home And Ors. Counsel for Applicant :- Avinash Chandra Counsel for Opposite Party :- G.A.

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Hon'ble Shamim Ahmed,J.

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Heard Shri Akhilsh Kalra, Senior Advocate, assisted by Shri Avinash Chandra, the learned counsel for the applicant, Shri Ashok Kumar Singh, the learned A.G.A. for the State and perused the record.

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The applicant, Mohd. Afzal , has moved the present bail application seeking bail in F.I.R. No. 443 of 2017, under Sections 376, 506, 406 I.P.C., Police Station Kotwali, District Sultanpur.

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Learned counsel for the applicant submits that the applicant has falsely been implicated in the case only with intention to defame the image of the applicant and his family members in the society. No such incident took place as alleged by the prosecutrix in the F.I.R.

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Learned counsel for the applicant further submits that the F.I.R. dated 26.07.2017 under Sections 376, 506, 419, 420, 406 I.P.C. was lodged by the prosecutrix against the applicant with the highly improbable allegations. As per the allegations made by the prosecutrix that the applicant took seven lakh rupees from her in the year 2013 by making promise to marry with her. After taking the aforesaid amount the applicant committed rape with the prosecutrix by promising her to get married. It has been further alleged in the F.I.R. that on 19.02.2017 the applicant came to the house of prosecutrix and taken away the prosecutrix at his house situated at Hanif Nagar, Sultanpur and made sexual relations with her without her consent. When the prosecutrix requested the applicant to marry, he promised that he will marry with her within one month. However, when the applicant did not marry, thereafter, the prosecutrix filed an application under Section 156(3) Cr.P.C. before the court below, whereupon the learned Magistrate without application of mind directed for investigation and registration of F.I.R.

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Learned counsel for the applicant further submits that there is no material on record on the basis of which the offence, as

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alleged by the prosecutrix, is made out, rather on the basis of material collected by the Investigating Officer it is apparent that the prosecutrix was in live in relationship with a boy for one month from February, 2017 to March, 2017, therefore, the allegation that the prosecutrix went to the applicant's house on 19.02.2017 and persuaded her to go with him and thereafter he established sexual relations with the prosecutrix on the promise of marriage is false. Such allegation has been made by the prosecutrix only with intention to extract the money from the applicant and to blackmail him.

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Learned counsel for the applicant further submits that the applicant is a man of reputation and is living his settled life. He has already married in the year 2016, therefore, there is no occasion for the applicant to involve himself into this kind of activities. Due to false and frivolous allegations made by the prosecutrix the entire life of the applicant is ruined.

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Learned counsel for the applicant further submits that the story narrated by the prosecutrix herself is self contradictory and contrary to the record which shows that the story set up by the prosecutrix is concocted, false and is an afterthought. In the F.I.R. it has been stated by the prosecutrix that she had give seven lakh rupees to the applicant for marrying with her, whereas in the application filed under Section 156(3) Cr.P.C. it has been stated by her that she had given the said money for construction of house of the applicant. Further submission is that the applicant never took any money from the prosecutrix at any point of time and the entire document in this regard of the prosecutrix is forged and fabricated.

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Learned counsel for the applicant further submits that infact the prosecutrix is a relative of the applicant. She is a grand daughter of Aunt (Bua) of the applicant. She is working at a cloth shop on a monthly salary of Rs. 5,000/- and she was in need of some more money, therefore, she does not have the financial capacity of giving seven lakh rupees to the applicant and has falsely implicated the applicant in this case to grab some money from him..

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Learned counsel for the applicant further submits that as per the allegations made in the F.I.R. the incident firstly took place in the year, 2013, but she kept mum for more than four years and she did not take any step nor filed any complaint before any authority regarding her sexual harassment by the applicant and for making false promise of marriage, therefore, it appears that the entire story set up by the prosecutrix in the F.I.R. is only an afterthought and was made only with intention to get some undue financial advantage from the applicant as the financial

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condition of the prosecutrix is not so well.

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Learned counsel for the applicant further drawn attention of this Court towards the medical report of the prosecutrix in which she had stated that she was in live in relationship with a boy and consummated sex, therefore, there was no occasion for the complainant to go with the applicant and to establish sexual relationships on the promise of marriage. Even otherwise, there is nothing in the medical report which indicate any forceful sexual relationship with the prosecutrix by the applicant nor any internal or external injury was found on the body of the prosecutrix as per the medical report.

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Learned counsel for the applicant further submits that the applicant is innocent and was having no relation with the prosecutrix, either physical or monitory. The allegations made in the F.I.R. are totally false and the charge sheet was filed by the Investigating Officer without considering the evidence on record and the same is filed in a mechanical manner, therefore, the applicant is entitled to be enlarged on bail by this Court sympathetically.

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Several other submissions regarding legality and illegality of the allegations made in the F.I.R. have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused, have also been touched upon at length. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. The applicant undertakes that in case he is released on bail he will not misuse the liberty of bail and will cooperate in trial. It has also been pointed out that the applicant is not having any criminal history and he is in jail since 18.12.2021 and that in the wake of heavy pendency of cases in the courts, there is no likelihood of any early conclusion of trial.

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

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After perusing the record in the light of the submissions made at the Bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also the absence of any convincing material to indicate the possibility of tampering with the evidence, and also considering the contradictions in the averments made in the F.I.R. and also considering that there is nothing in the medical report which indicate any forceful sexual

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relationship with the prosecutrix or any internal or external injury was found on the body of the prosecutrix and also the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the case of Dataram Singh vs. State of U.P. and another , reported in (2018) 3 SCC 22 , this Court is of the view that the applicant may be enlarged on bail.

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The prayer for bail is granted. The application is allowed.

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Let the applicant, Mohd. Afzal , involved in F.I.R. No. 443 of 2017, under Sections 376, 506, 406 I.P.C., Police Station Kotwali, District Sultanpur, be enlarged on bail on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned on the following conditions :-

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(1) The applicant will not make any attempt to tamper with the prosecution evidence in any manner whatsoever.

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(2) The applicant will personally appear on each and every date fixed in the court below and his personal presence shall not be exempted unless the court itself deems it fit to do so in the interest of justice.

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(3) The applicant shall cooperate in the trial sincerely without seeking any adjournment.

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

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(5) In case, the applicant misuses the liberty of bail and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the 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 of the Indian Penal Code.

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(6) 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 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.

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

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or certified copy issued from the Registry of the High Court, Allahabad.

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(8) 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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It may be observed that in the event of any breach of the aforesaid conditions, the court below shall be at liberty to proceed for the cancellation of applicant's bail.

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It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merit of the case.

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Order Date :- 18.2.2022 Mustaqeem

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Digitally signed by MOHD MUSTAQEEM KHAN Date: 2022.02.18 15:38:32 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Mohd. Afzal v. State of U.P Thru. Prin. Secy. Home and Ors.

Case brief

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Mohd. Afzal v. State of U.P Thru. Prin. Secy. Home and Ors.

Case brief

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