Faisal Ahmad @ Atharva Singh Vs State of U.P. Thru.Addl. Chief Secy. Deptt. of Home

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Neutral Citation No. - 2023:AHC-LKO:51610

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Court No. - 4

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6810 of 2023

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Applicant :- Faisal Ahmad @ Atharva Singh Opposite Party :- State Of U.P. Thru.Addl. Chief Secy. Deptt. Of Home

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Counsel for Applicant :- Amol Kumar Srivastava,Shivang Dwivedi,Shivanshu Mishra Counsel for Opposite Party :- G.A.

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Hon'ble Rajesh Singh Chauhan,J.

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1. Sri Amol Kumar Srivastava, learned counsel for the applicant and Sri Angad Kumar Vishwakarma, learned Additional Government Advocate for the State.

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2. This is the second bail application. The first bail application bearing Criminal Misc. Bail Application No.1660 of 2023 (Faisal Ahmed @ Atharva Singh vs. State of U.P. & others). The operative portion of the first bail rejection order dated 01.03.2023 reads as under:-

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"Accordingly, the bail application of the present applicant is hereby rejected.

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Learned Trial Court is directed to frame the charges forthwith, say, within a period of one week from the receipt of the copy of this order, if the same has not been framed till date. Further, the evidence of the informant/prosecutrix-PW1, Sri Avinash SinghPW2, Smt. Sapna Rawat-PW3, and Sri Somvrat Shastri-PW16 who are the eye witnesses and Dr. Arpita Singh Gupta-PW9 be recorded with expedition, preferably within a period of two months, by fixing short dates or fixing dates on day to day basis in terms of Section 309 Cr.P.C. and no unnecessary adjournment shall be given to any of the parties and if any of the parties does not participate in the trial proceedings properly, appropriate coercive steps may be taken which are permissible under the law but in any case, the aforesaid fact/material witnesses be examined within a period of two months after framing the charges.

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The learned Trial Court shall first examine the star witness i.e., informant/prosecutrix, thereafter other witnesses, as indicated above shall be examined as per the convenience of the learned Trial Court.

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It is made clear that I have not considered the merit of the case which should be considered by the learned Trial Court and the observations of this order are only confined to the disposal of this bail application, therefore, the learned Trial Court shall conduct and conclude the trial independently without being influenced from any observation of this order.

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The present applicant may revive his bail by filing another bail application if the evidence of the aforesaid fact/ material witnesses are not recorded by the learned Trial Court within the stipulated time. The learned counsel for the applicant shall serve this order to the learned Trial Court within three days.

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No order as to costs."

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3. Since liberty was given to the applicant to revive his bail application by filing another bail application if the evidences of all fact / material witnesses are not recorded by the learned trial court within the stipulated time. The second bail application was filed since the evidences of all fact / material witnesses were not recorded by the learned trial court within time stipulated but admittedly during pendency of this second bail application the evidences of fact/ material witnesses have been recorded by the learned trial court.

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4. As per the learned counsel for the applicant, the present applicant is in jail since 04.09.2022 in Case Crime No.0692 of 2022, Under Sections 420, 376, 377, 323, 504, 506, I.P.C, r/w Section 3, 5(1) of U.P. Prohibition of Unlawful Conversion of Religion Act, 2021, r/w Sec 3, 4, 6 of Indecent Representation of Women (Prohibition) Act, 1986, Police Station-Chinhat, Lucknow (E).

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5. Sri Amol Kumar Srivastava, learned counsel for the applicant has drawn attention of this Court towards the evidences of fact and relevant witnesses and perusal thereof convinces the Court that there are some material pursuant to which the second bail application may be considered.

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6. Some new facts have emerged e.g. the prosecutrix was already a married lady as she got married on 04.06.2016 with one Aniket Alixender, however, later on she had taken divorce from him. There is some contradiction in the statement of the family members of the prosecutrix.

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7. The parents and family members of the prosecutrix were not aware about two marriages of the prosecutrix. One is with the present applicant and another is with Aniket Alixender. She was regularly getting some amount from the present applicant

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wherein his name was clearly indicated as Faisal Ahmad but the prosecutrix has stated that she was under impression that Faisal is a friend of the present applicant. She was sharing the Facebook account with Faisal and the photograph of Faisal was shown but she could not know his identity is beyond any comprehension.

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8. Learned counsel for the applicant has stated that the prosecutrix is also known as Chhaya Singh and Suhani Singh. He has also stated that besides the present applicant she was having relating with so many persons, namely, Asif Khan, Dr. Anand Singh, Arpit and Aniket Sharma and some of them have transferred some amounts in the account of the prosecutrix.

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9. In her cross-examination, the prosecutrix has stated that she was in relation with Aniket Sharma for about two years. She has stated that her Instagram account is in the name of Suhani Singh and her Facebook account is in the name of Aradhana Singh.

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10. Learned Additional Government Advocate has stated that the prosecutrix is a earning member of her family, therefore, she has having relation with so many persons but having relation with so many persons does not mean that she was having illicit relations.

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11. On being confronted the learned Additional Government Advocate as to whether while recording her statement under Sections 161 & 164 Cr.P.C. she has informed the Investigating Officer about her earlier marriage and relations with her friends with whom she was in relations for couple of years, he has stated that at that point of time she did not disclose about her marriage with Aniket Alixender.

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12. The evidences so recorded before the learned trial court, all the relevant / fact witnesses are having some variations with their statements so recorded at the earlier stage.

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13. Having heard learned counsel for the parties and having perused the material available on record, it is evident that since there are total 26 prosecution witnesses, out of those prosecution witnesses all relevant/ material witnesses in terms of order of this Court have been examined. In a case where there is allegation relating to rape etc., at least the evidences of all material and relevant witnesses should have been recorded and there chief examination and cross-examination should have been completed for the reason that if the accused applicant comes out from the jail, he may likely to influence the material/ fact witnesses. The Hon'ble Supreme Court has held in some

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cases that if the examination and cross-examination of all facts and material witnesses have been completed, the bail application of the accused may be considered if the court concerned has found substance on the material placed before it.

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14. It has been informed at the bar that till date out of 26 prosecution witnesses, only 09 witnesses have been examined. Therefore, 17 prosecution witnesses are yet to be examined. Some of them are formal witness but examining all the prosecution witnesses, thereafter the defence witnesses would take substantial time.

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15. Though the statement of the prosecution witnesses which have been filed by Sri Amol Kumar Srivastava, learned counsel for the applicant are such where some observation may be given by this Court but I am abstaining myself to give any observation of those statements for the reason that such observations may affect the trial. But perusal of those statements and the subsequent developments, which have been considered above, convince the Court that the present applicant may be granted bail.

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16. Therefore, without entering into merits of the issue and without giving any observation on the statements so annexed by Sri Amol Kumar Srivastava, learned counsel for the applicant by filing supplementary affidavits and considering the fact that all the relevant / fact witnesses including the prosecutrix have been examined and cross-examined, therefore, the submission of learned counsel for the applicant that if the present applicant now comes out from the jail, he may not influence the trial in any manner whatsoever has got weight.

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17. Accordingly, the present second bail application is allowed.

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18. Let the present applicant (Faisal Ahmad @ Atharva Singh) be released on bail in the aforesaid case crime number on his furnishing a personal bond of Rs.100,000/- with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

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(i) 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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(ii) 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

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proceed against him under Section 229-A of the Indian Penal Code.

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(iii) 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 of the Indian Penal Code.

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(iv) 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 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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(v) Before parting with the learned trial court is directed to conclude the trial by invoking the relevant provision of Cr.P.C. i.e. Section 309 Cr.P.C. by fixing short dates to conclude the trial. If any of the witnesses do not co-operate with the trial proceedings, all appropriate coercive steps may be taken against them. The learned trial court is further directed to conclude the trial with expedition and no unnecessary adjournment shall be given to any of the parties.

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[Rajesh Singh Chauhan,J.]

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Order Date :- 4.8.2023 Suresh/

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

Faisal Ahmad @ Atharva Singh v. State of U.P. Thru.Addl. Chief Secy. Deptt. of Home

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Faisal Ahmad @ Atharva Singh v. State of U.P. Thru.Addl. Chief Secy. Deptt. of Home

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