Allowed

Shahjad and Another v. State of U.P.

Allahabad HC9 Feb 2022BAIL/2661/2022

Case brief

AI extract

What is this about?

High Court Court No. 80 granted bail to applicants Shahjad and Naushad in a case involving offences under Section 498A IPC and 376D IPC (gang rape). The court allowed the application without expressing an opinion on the merits based on settled legal principles regarding bail.

What did the court decide?

Release of applicants on bail by furnishing personal bond and two reliable sureties each in like amount.

Shahjad and Another Vs State of U.P. — Dowry and Cruelty | Allahabad HC (2022)

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Court No. - 80

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2661 of 2022

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Applicant :- Shahjad And Another Opposite Party :- State of U.P. Counsel for Applicant :- Sayeed Saif Ullah,Sufia Saba Counsel for Opposite Party :- G.A.

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Hon'ble Sanjay Kumar Pachori,J.

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Heard Ms. Sufia Saba, learned counsel for the applicants, learned A.G.A. for the State and perused the material on record.

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The present bail application has been filed on behalf of applicants Shahjad and Naushad under Section 439 of the Code of Criminal Procedure, with a prayer to release them on bail in Case Crime No. 296 of 2021 for the offence punishable under Sections 498A, 323, 376D, 504, 506 of the Indian Penal Code and Section 3/4 Dowry Prohibition Act, registered at Police Station Gagalhedi, District Saharanpur, during pendency of the trial after rejecting the bail application of the applicants by Sessions Judge vide order dated 04.01.2022.

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Brief facts of the case are that the First Information Report dated 26.06.2021 has been lodged by the victim against the husband, brother-in-law of the victim, married sister-in-law of the victim (Devrani) and brother-in-law (Nandoi) of the victim on the basis of an application under section 156 (3) Cr.P.C. alleging therein that on 23.06.2020 marriage of the first informant /victim was solemnized as per Muslim rights and customs with the Co-accused Riyasat (brother of the applicants) and Rs. 8 lacs spent which is more than the capacity of her father but in-laws were not satisfied and demanded Rs. one lac and one motor cycle as additional dowry. On refusal to meet their demands, victim was treated with cruelty by her in-law. On 11.07.2021 she was thrown out of her matrimonial house whereafter, she had been living with parental house. On 27.08.2021 at about 11.30. when she was all alone at home, the applicants and co-accused persons reached there on the plea of making compromise which resulted into hot talks then coaccused Gulistha (Devrani) pushed her inside the room and after bolting it from outside the applicants and co-accused Sonu outraged her modesty and committed rape with her one by one.

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After lodging of F.I.R in question, statement of victim under Section 161 Cr.P.C. was recorded on 14.11.2021, her Medical

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Examination was conducted on 15.11.2021 and the statement under Section 164 Cr.P.C. has been recorded on 30.11.2021. The applicants were arrested on 06.12.2021.

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Learned counsel for the applicants submits that the applicant is innocent and has been falsely implicated in the present case due to matrimonial discord. It is further submitted that as allegations made in the F.I.R., she was gang-rapped in front of her husband. It is further submitted that there are material contradictions and improvement in the allegations levelled in the F.I.R. as well as statements of the victim recorded under Sections 161Cr.P.C. and 164 Cr.P.C. It is further submitted that the applicants are brother-in -laws of the victim.

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Learned counsel for the applicants also submitted that the applicants have no other previous criminal history. It is lastly submitted that if the applicants are released on bail, they shall not misuse the liberty of bail.

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Per contra , learned AGA has supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicants and he further submits that the allegations involved are very serious in nature but he could not point out any material to the contrary. He further submits that in case the applicants is released on bail, he will misuse the liberty 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 incident took place in the parental house (Mika) of the victim:

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(b) applicants are brother-in-law ( Jeth) of the victim;

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(d) there are material contradiction and improvement in the allegations made in the statements recorded under section 161 Cr.P.C. and 164 Cr.P.C; It would not be appropriate to state the same in details at this stage.

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(e) there is no other evidence except statements of the victim.

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It is 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

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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 , R am 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 applicants, Shahjad and Naushad be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

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

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

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(iii) The applicants 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 applicants 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 applicants shall remain present before the trial court on each date fixed, either personally or through their counsel.

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(vi) The applicants 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 case, then it shall be open for the trial court to treat

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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/endeavour and try to conclude the trial expeditiously in accordance of 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 alongwith a self attested identity 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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Order Date :- 9.2.2022 aks

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Digitally signed by ANIL KUMAR SRIVASTAVA Date: 2022.02.14 10:46:30 IST Reason: Location: High Court of Judicature at Allahabad

Shahjad and Another v. State of U.P.

Case brief

What is this about?

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Shahjad and Another v. State of U.P.

Case brief

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