Allowed

Shahwaj Khan v. State of U.P.

Allahabad HC6 Dec 2022BAIL/46502/2022

Case brief

AI extract

What is this about?

In a bail application under Sections 323, 342, and 376 IPC, the High Court allowed the applicant, Shahwaj Khan, to be released on bail after noting the prima facie evidence of the victim's conduct and lack of criminal history.

What did the court decide?

Release of the applicant on bail by furnishing a personal bond and two reliable sureties with specific conditions regarding court appearances.

Shahwaj Khan Vs State of U.P. — Bail and Remand | Allahabad HC (2022)

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Court No. - 64 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46502 of 2022 Applicant :- Shahwaj Khan Opposite Party :- State of U.P. Counsel for Applicant :- Satya Narayan Yadav Counsel for Opposite Party :- G.A. Hon'ble Rajiv Gupta,J.

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Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

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This bail application has been filed by the applicant seeking bail in Case Crime No. 606 of 2022, under Sections 323, 342, 376 IPC, Police Station Shikohabad, District Firozabad, during pendency of trial.

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Learned counsel for the applicant has submitted that the applicant is wholly innocent and has been falsely implicated in the present case due to ulterior motive.

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Learned counsel for the applicant has next submitted that FIR has been lodged by the victim herself stating therein that on 26.07.2022, the applicant had taken her away in the car and locked its door from inside and started playing songs on high volume and assaulted her, on account of which, she fell unconscious and after regaining conscious, she found herself in a room, which was locked from outside and thereafter, the applicant had committed rape on her.

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Learned counsel for the applicant has next submitted that in respect of said incident, FIR has been lodged by the victim with the delay of more than 20 days. The victim, in her statement shown to be recorded under Section 161 CrPC, has stated that the applicant had taken her in a car and stayed with her in a room and instigated her against her family members and extended death threats to her and she remained in company of the applicant for 15 days but no allegation of committing of rape on the victim has been alleged in her statement, however subsequently, in her statement shown to be recorded under Section 164 CrPC, she has reiterated the same story and has stated that the applicant had assaulted her and stayed with her for the period of 12 days and committed rape on her.

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Learned counsel for the applicant has next submitted that the victim is a major married lady and out of her own free will and consent, stayed with the applicant for several

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days and in fact, she was in consensual physical relations with him, which is evident from the circumstances that she stayed with the applicant for 12-15 days but did not raise any alarm nor made any complaint.

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Learned counsel for the applicant has next submitted that the victim is a major married lady and mature enough to understand the consequence of her act.

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Learned counsel for the applicant has next submitted that the applicant is in jail since 17.08.2022 and has no criminal history to his credit. The charge-sheet has already been submitted and there is no chance of applicant fleeing away from judicial process or tampering with the witnesses, as such, he may be released on bail.

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Per contra, learned AGA has vehemently opposed the prayer for bail but could not dispute the aforesaid facts.

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Having considered the rival submissions made by learned counsel for the parties and on perusal of the record, it is evident that the FIR of the present incident has been lodged by the victim herself after more than 20 days of the incident. In her statement shown to be recorded under Section 161 CrPC, victim has stated that she stayed with the applicant for a period of 15 days and there in no allegation of rape against the applicant, however, in her statement under Section 164 CrPC, she has improved her version and has stated that the applicant committed rape on her.

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From the perusal of the record, prima facie it appears that the victim was consenting party and she was in consensual physical relations with the applicant because she herself stayed with the applicant for 12-15 days but never raised any alarm or made any complaint.

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Furthermore, the victim is a major married lady and mature enough to understand the consequence of her act. The applicant is in jail since 17.08.2022 and has no criminal history to his credit. The charge-sheet has already been submitted and there is no chance of applicant fleeing away from judicial process or tampering with the witnesses.

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In view of the aforesaid facts and circumstances, I am of the view that the applicant has made out a case for bail. Let the applicant Shahwaj Khan be released on bail in the aforesaid case on furnishing a personal bond and two

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

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(1). 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 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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(2). 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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(3). 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. 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 IPC.

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

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It is further directed that the identity, status and residence proof of the sureties be verified by the authorities concerned before they are accepted.

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In case of breach of any of the above conditions, the trial court will be at liberty to cancel the bail.

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The bail application is accordingly allowed.

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Order Date :- 6.12.2022/Nadim

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Digitally signed by NADIM ALAM Date: 2022.12.06 17:37:39 IST Reason: Location: High Court of Judicature at Allahabad

Shahwaj Khan v. State of U.P.

Case brief

What is this about?

What did the court decide?

Shahwaj Khan v. State of U.P.

Case brief

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