Allowed

Mohd. Ansar v. State of U.P. Thru. Prin. Secy. Home, Up Lko. and Another

Allahabad HC1 May 2023/1081/2022

Case brief

AI extract

What is this about?

In an appeal against bail rejection in a case under Sections 363, 366 IPC and S.C./S.T. Act, this Court set aside the impugned order of the Special Judge who failed to appreciate material on record, including lack of specific allegations against the appellant by the victim in statements and refusal of medical examination, and granted bail with conditions.

What did the court decide?

The impugned bail rejection order set aside; appellant granted bail to deliver personal bond with two sureties and comply with bail conditions.

Mohd. Ansar Vs State of U.P. Thru. Prin. Secy… — Criminal Trial and Appeal | Allahabad HC (2023)

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Court No. - 15

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Case :- CRIMINAL APPEAL No. - 1081 of 2022

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Appellant :- Mohd. Ansar Respondent :- State Of U.P. Thru. Prin. Secy. Home, Up Lko. And Another Counsel for Appellant :- Priyanka Pal,Brijendra Singh,Gaurav Misra,Yaduvansh Mani Singh Yadav,Yashi Mishra

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Counsel for Respondent :- G.A.

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Hon'ble Ajai Kumar Srivastava-I,J.

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1. Heard Ms. Yashi Mishra, learned counsel for the appellant, Sri Balram Singh, learned A.G.A. for the State and perused the entire record.

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2. This Criminal Appeal under Section 14-A (2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 02.11.2021 passed by the learned Special Judge (S.C./ S.T. Act), Raebareli in Bail Application No.2339 of 2021 "Mohd. Ansar vs. State of U.P." arising out of Case Crime No.351 of 2021, under Sections 363, 366 I.P.C. and Sections 3(2)V S.C./ S.T. Act, Police Station Gurubuxganj, District Raebareli, whereby the bail application of the appellant has been rejected.

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3. Vide order dated dated 18.05.2022, notice was directed to be issued to respondent No.2, which has been served upon her as per report dated 27.05.2022 furnished by the learned Chief Judicial Magistrate, Raebareli. However, no one has put in appearance on behalf of respondent No.2.

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4. Learned counsel for the appellant has submitted that the first information report has been lodged against the

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appellant on the basis of false and fabricated facts. The accused/ appellant is innocent, who has been falsely implicated in this case because of his acquaintance with the co-accused, Ajay Gupta, who was not named in the first information report.

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5. Her further submission is that the statements of the victim recorded under Sections 161 and 164 Cr.P.C. reveal that the present accused/ appellant did not commit any offence, whatsoever; rather the accused/ appellant tried his level best to the victim from the trauma of any offence.

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6. Learned counsel for the appellant has also submitted that the victim has refused to get herself medically examined which, otherwise, belies the prosecution story.

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7. Learned counsel for the appellant has also drawn attention of this Court to the statement of the victim recorded under Section 164 Cr.P.C. and has submitted that the main culprit was not apprehended and no offence against him was collected by the Investigating OfÏcer for some ulterior reason.

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8. Her further submission is that the accused/ appellant is languishing in jail since 14.08.2021, who has no previous criminal history.

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9. Her next submission is that in case, the appellant is enlarged on bail, he shall not misuse the liberty of bail and he shall also fully cooperate with the trial court in getting the trial concluded expeditiously. She has further submitted that there is no possibility of the appellant to intimidate or pressurize the witnesses or

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any other persons acquainted with the facts of the present case.

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10. For the aforesaid reasons, learned counsel for the appellant submits that the instant criminal appeal deserves to be allowed. The impugned order dated 02.11.2021 passed by the learned Special Judge (S.C./ S.T. Act), Raebareli in Bail Application No.2339 of 2021 "Mohd. Ansar vs. State of U.P." arising out of Case Crime No.351 of 2021, under Sections 363, 366 I.P.C. and Sections 3(2)V S.C./ S.T. Act, Police Station Gurubuxganj, District Raebareli, deserves to be set aside and consequently, the accused/ appellant deserves to be enlarged on bail during pendency of the trial.

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11. Per contra, learned A.G.A. has vehemently opposed the prayer by submitting that the accused/ appellant has committed a heinous offence of rape upon the victim. Therefore, the accused/ appellant is not entitled to be enlarged on bail and the instant criminal appeal deserved to be dismissed. However, he has been unable to dispute the other factual submissions advanced by the learned counsel for the accused/ appellant including the fact that the victim had refused to get herself medically examined and the victim, in her statements recorded under Sections 161 and 164 Cr.P.C., has not levelled any specific allegation against the present appellant.

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12. Having heard the learned counsel for the appellant, learned A.G.A. for the State and upon perusal of record, it transpires that the accused/ appellant is named in the first information report. In her statements recorded

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under Sections 161 and 164 Cr.P.C., the victim has not levelled any specific allegation against the accused/ appellant. The victim had refused to get herself medically examined. The accused/ appellant is languishing in jail since 14.08.2021, who has no previous criminal history.

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13. Considering the aforesaid overall facts and circumstance of the case, without expressing any opinion on merit, this Court of the view that the learned court below has failed to appreciate the material available on record. The order passed by the court below is liable to be set aside.

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14. Accordingly, the appeal is allowed . Consequently, the impugned order dated 02.11.2021 passed by the learned Special Judge (S.C./ S.T. Act), Raebareli in Bail Application No.2339 of 2021 "Mohd. Ansar vs. State of U.P." arising out of Case Crime No.351 of 2021, under Sections 363, 366 I.P.C. and Sections 3(2)V S.C./ S.T. Act, Police Station Gurubuxganj, District Raebareli, is, hereby, set aside.

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15. Let the appellant, Mohd. Ansar be released on bail in the aforesaid case crime number with the following conditions:-

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(i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned.

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(ii) The appellant shall appear and strictly comply following terms of bond executed under section 437 sub section 3 of Chapter- 33 of Cr.P.C.:-

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(a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter.

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(b) The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

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(c) The appellant 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 ofÏcer or tamper with the evidence.

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(iii) The appellant shall cooperate with investigation /trial.

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(iv) The appellant 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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(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

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(vi) In case, the appellant misuses the liberty of bail during trial, in order to secure his presence, proclamation under section 82 Cr.P.C. is issued and the appellant 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

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law, under Section 174-A of the Indian Penal Code.

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(vii) The appellant shall remain present, 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 absence of the appellant is deliberate or without sufÏcient 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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16. The learned trial court concerned is directed to proceed with the trial and conclude the same expeditiously and preferably within a period of one year from the date of production of certified copy of this order, in accordance with law, without granting any unnecessary adjournments to the parties, if there is no other legal impediment.

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(Ajai Kumar Srivastava-I, J.)

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Order Date :- 1.5.2023 cks/-

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Digitally signed by :- CHANDRA KANT SINGH High Court of Judicature at Allahabad, Lucknow Bench

Mohd. Ansar v. State of U.P. Thru. Prin. Secy. Home, Up Lko. and Another

Case brief

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Mohd. Ansar v. State of U.P. Thru. Prin. Secy. Home, Up Lko. and Another

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