Allowed

Mohammad Ovaish v. State of U.P. and 3 Others

Allahabad HC10 Feb 2023ABAIL/12449/2022

Case brief

AI extract

What is this about?

This judgment grants anticipatory bail to the applicant in a case involving POCSO and IPC charges related to a minor marriage. The court finds the allegations of conspiracy insufficient to deny bail, subject to strict conditions regarding appearance and non-interference.

What did the court decide?

The applicant was released on anticipatory bail till submission of chargesheet on furnishing a personal bond and two sureties subject to specific conditions.

Mohammad Ovaish Vs State of U.P. and 3 Others — Child Sexual Offences (POCSO) | Allahabad HC (2023)

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Court No. - 85

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 12449 of 2022

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Applicant :- Mohammad Ovaish Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Birendra Singh Counsel for Opposite Party :- G.A.,Rayoof Ali

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Hon'ble Mrs. Jyotsna Sharma,J.

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Heard Sri Birendra Singh, learned counsel for the applicant, Sri Neeraj Srivastava, Advocate holding brief for Sri Rayoof Ali, learned counsel for the first informant, learned A.G.A. for the State and perused the record.

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This application has been moved on behalf of the applicant- Mohammad Ovaish seeking anticipatory bail in Case Crime No.499 of 2022, under sections- 363, 366, 376, 504, 506, 120B I.P.C. and section- 5/6 POCSO Act, Police Station- Khalilabad, District- Sant Kabir Nagar.

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As per allegations in the F.I.R. lodged by father of the victim, one Salman aged 21 years enticed away his 16 year old minor daughter and got married to her forcefully and sexually assaulted her for six days; on the basis of the application moved under section 156(3) Cr.P.C. to above effect, the case was registered against Salman and two other persons named in the F.I.R. including the present applicant.

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It is contended on behalf of the applicant that no role has been assigned to present applicant in whole of the episode; the victim in her statement recorded under section 161 Cr.P.C. too has imputed allegations against Salman and not against the present applicant; the only statement worth mention against the applicant is that he was present during the nikaah ceremony. It is further contended that the matter between Salman and the victim was consensual in nature and that the present applicant is absolutely innocent and has nothing to do with the affairs between the two; he has no criminal antecedents and that he shall abide by the conditions imposed by this Court, if any.

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This anticipatory bail application is opposed by the private counsel for the first informant and learned A.G.A. on the ground that evidence has been collected to show that at the time of nikaah, he too was present. It is said that he was one of the conspirators in hatching the conspiracy for marriage of a minor girl with one Salman.

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It is further pointed out that in this case against the present applicant nonbailable warrant and process under section 82 Cr.P.C. has been issued. Countering this argument, the applicant submits that he was given a liberty to present his anticipatory bail application/bail application by an order dated 19.10.2022 passed in Criminal Misc. Writ Petition No.15536 of 2022 and he promptly moved anticipatory bail and that he has had no intention to avoid the process of law.

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In case of Siddharam Satlingappa Mhetre v. State of Maharashtra,

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(2011) 1 SCC 694 , it has been held by Hon'ble Supreme Court that while deciding anticipatory bail, Court must consider nature and gravity of accusation, antecedent of accused, possibility of accused to flee from justice and that Court must evaluate entire available material against the accused carefully and that the exact role of the accused has also to be taken into consideration.

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In the instant case, I considered submissions of the learned counsel for the parties, nature of accusation, role of applicant and all attending facts and circumstances of the case and at the most that there is allegation of being a conspirator and the role is covered by section- 120B I.P.C. only. In my view, a case for anticipatory bail is made out.

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Let the applicant- Mohammad Ovaish involved in the aforesaid case crime number be released on anticipatory bail till submission of chargesheet on furnishing a personal bond and two sureties of the same amount before the court concerned, subject to the conditions as below:-

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(i) that the applicant shall appear before the concerned Investigating Officer and get his statement recorded within 15 days from today and shall also furnish an affidavit of compliance before the court concerned.

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(ii) that the applicant shall make himself available for interrogation by a police officer as and when required;

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(iii) that the applicant 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 officer or tamper with the evidence;

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(iv) that the applicant shall not leave India without previous permission of the court;

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(v) that the applicant shall not tamper with the evidence during the trial;

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(vi) that the applicant shall not pressurize/ intimidate the prosecution witness;

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(vii) that the applicant shall appear before the trial court on each date fixed unless personal presence is exempted.

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9. In case of breach of any of the above conditions, the court below shall have the liberty to cancel the bail granted to the applicant.

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10. It is made clear that observations made in granting anticipatory bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion at any stage of the case based on material before him.

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Order Date :- 10.2.2023 Saif

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Digitally signed by :- SHAIKH SAIF ABDIN High Court of Judicature at Allahabad

Mohammad Ovaish v. State of U.P. and 3 Others

Case brief

What is this about?

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Mohammad Ovaish v. State of U.P. and 3 Others

Case brief

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