Allowed

Murtuza v. State of U.P. and 3 Others

Allahabad HC26 Jun 2023BAIL/20363/2023

Case brief

AI extract

What is this about?

In a bail application regarding rape and POCSO charges, the court noted that the FIR was filed via Section 156(3) Cr.P.C. after a substantial delay and a counter-allegation of rape existed where the informant's son allegedly assaulted the applicant's daughter.

What did the court decide?

Release of the applicant on bail on furnishing a personal bond and two sureties each in like amount.

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

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Neutral Citation No. - 2023:AHC:128594

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Court No. - 79

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20363 of 2023

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Applicant :- Murtuza Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Baijant Kumar Mishra Counsel for Opposite Party :- G.A.

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Hon'ble Sameer Jain,J.

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Supplementary affidavit filed today on behalf of the applicant is taken on record.

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Sri S.S. Singh, learned AGA-I for the State apprised the Court that on 30.04.2023 notice has been served to the informant of the case.

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Despite service of notice, none appeared on behalf of the informant.

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Heard Sri Baijant Kumar Mishra, learned counsel for the applicant and Sri S.S. Singh, learned AGA-I for the Staterespondent.

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The instant application has been filed seeking release of the applicant on bail in Case Crime No. 37 of 2023, under Sections 376, 452, 323, 504, 506 IPC & 3/4 POCSO Act, Police StationHata, District- Kushinagar, during pendency of the trial in the court below.

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FIR of the present case was lodged on 15.01.2023 through an application under Section 156(3) Cr.P.C. dated 20.10.2022 and according to the FIR, on 15.10.2022 in the afternoon, applicant committed rape with the minor daughter of the informant aged about 16 years when she was alone in her home.

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Learned counsel for the applicant submitted that entire allegation of rape made against the applicant is totally false and baseless and FIR of the present case was lodged through an application under Section 156(3) Cr.P.C. after about more than two and half months and even application under Section 156(3) Cr.P.C. was moved after about five days i.e. on 20.10.2022 and this fact

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clearly suggests that entire allegation made against the applicant is totally false and baseless.

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He further submitted that actually, brother of the prosecutrix i.e. son of the informant committed rape with the daughter of the applicant on 25.09.2022 and in this regard, a FIR was lodged by his daughter against the brother of the victim on 31.12.2022 through an application under Section 156(3) Cr.P.C. dated 15.10.2022 and only due to this reason totally on the basis of false allegation, allegation of rape has been made against the applicant subsequently.

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He further submitted that applicant is having criminal history of one case of SC/ST Act but his criminal history has been explained in the supplementary affidavit filed today and in the present matter, applicant is in jail since 02.04.2023.

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Per contra, learned AGA opposed the prayer for bail and submitted that prosecutrix is a minor girl below 18 years of age and there is specific allegation against the applicant that he committed rape with her and prosecutrix in her both the statements recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. made allegation of rape against the applicant but could not dispute the fact that even before lodgement of the FIR of the present case, a FIR was also lodged by the daughter of the applicant against the brother of the victim and she made allegation of rape against him.

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I have heard learned counsel for the parties and perused the record of the case.

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Although, from the record, it reflects that prosecutrix of the case is a minor girl below 18 years of age and she in her both the statements recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. made allegation of rape against the applicant but from the record, it further reflects that earlier a FIR was lodged by the daughter of the applicant against the brother of the victim of the case with the allegation of rape and even FIR of the present case was lodged through an application under Section 156(3) Cr.P.C. after about two and half months and application under Section 156(3) Cr.P.C. was moved after more than five days and incident of rape alleged to have been committed by the brother of the victim of the case was of September, 2022 i.e. well before the alleged incident of rape of the present case.

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Therefore, from the discussion made above, in my view applicant is entitled to be released on bail.

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Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed .

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Let the applicant- Murtuza be released on bail in the aforesaid case on furnishing a personal bond and 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 appear before the trial court on the dates fixed, unless his personal presence is exempted.

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(ii) The applicant shall not directly or indirectly, make 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 any police officer or tamper with the evidence.

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(iii) The applicant shall not indulge in any criminal and anti-social activity.

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In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant.

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It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial.

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Order Date :- 26.6.2023

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KK Patel

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Digitally signed by :- KRISHN KANT PATEL High Court of Judicature at Allahabad

Murtuza v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Murtuza v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

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