Allowed

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

Allahabad HC11 Jul 2023BAIL/23336/2023

Case brief

AI extract

What is this about?

This bail application by Atabul, arrested under POCSO and IPC sections, was allowed. The court noted the main accused Shane Alam was already released on bail. Relying on clean antecedents, duration of incarceration, and lack of evidence of custodial necessity, the court granted bail with strict conditions to prevent abuse of liberty.

What did the court decide?

Bail granted on personal bond and two sureties subject to strict conditions regarding court appearances and trial conduct.

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

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Neutral Citation No. - 2023:AHC:137227

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Court No. - 65

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 23336 of 2023

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Applicant :- Atabul Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Saiyad Iqbal Ahmed Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Saiyad Iqbal Ahmed, the learned counsel for applicant and the learned A.G.A. for State.

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This application for bail has been filed by applicant Atabul seeking his enlargement on bail in Case Crime No.77 of 2023, under Sections 363, 366, 376 IPC and Section 3/4 Pocso Act, police station Sambhal, district Sambhat at Chandausi, during the pendency of trial.

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Perused the record.

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Record shows that in respect of an incident which is alleged to have occurred on 28.02.2023, a delayed FIR dated 02.03.2023 was lodged by first informant-Mohd. Ismail which was registered as Case Crime No.0077 of 2023, under Sections 363 and 366 IPC, police station Sambhal, district Sambhal. In the aforesaid FIR, four persons, namely, Atabul (applicant herein), Shane Alam, Sitara Begum and Abid have been nominated as named accused.

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The gravamen of the allegations made in the FIR dated 02.03.2023 is to the effect that named accused enticed away the daughter of brother-in-law of the first informant, namely, X aged about 16 years.

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At the very outset, the learned counsel for applicant submits that named and charge-sheeted accused, namely, Shane Alam has already has already been enlarged on bail by this Court vide order dated 05.07.2023 passed in Criminal Misc. Bail Application No.28193 of 2023 (Shane Alam Vs. State of U.P.). For ready reference, the order dated 05.04.2023 is reproduced herein-under :-

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

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2. It has been argued by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case. Learned counsel further submits that the victim in her statement recorded under Section 161 Cr.P.C. has specifically stated that she loves with the applicant and that the

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family members of the applicant were ready for the marriage but her family members were not ready and went away whereas, the victim in her statement recorded under Section 164 Cr.P.C. has stated that she was enticed away by the applicant and was kept by the applicant for four days and had committed wrong with her. It is thus contended that there are major contradictions in the statements of the victim recorded under Section 161 and 164 Cr.P.C. He further submits that in fact, the victim is a consenting party and has falsely roped the applicant in the present case under the pressure of her parents and therefore, no offence against the applicant is made out. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been mentioned. It has also been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. He next submits that applicant is languishing in jail since 05.03.2023 having no criminal history.

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3. Per contra, learned A.G.A. has opposed the prayer for bail of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserve any indulgence. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail.

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4. Considering the entire facts and circumstances of the case, submissions of learned counsel for the parties, nature of evidence, and all attending facts and circumstances of the case, without expressing any opinion on merits of the case, this Court is of the view that the applicant has made out a case for bail. Hence the bail application is allowed.

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5. Let applicant Shane Alam involved in Case Crime No.77 of 2023 under Sections 363, 366, 376 I.P.C., and Section 3/4 of POCSO Act, Police Station Sambhal, District Sambhal be released on bail on furnishing a personal bond and two heavy local sureties each of the like amount to the satisfaction of the court concerned subject to 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 and 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 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 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.

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In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

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6. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted."

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On the above premise, the learned counsel for applicant contends that the named and charge-sheeted accused, namely, Shane Alam is the main accused as the prosecutrix in her statement recorded under Section 164 CrPC has implicated the aforesaid accused for having dislodged her modesty. The case of the present applicant is on better footing than the aforementioned named and charge-sheeted main accused. In view of above and for the facts and reasons recorded in the bail order of above named co-accused, applicant is also liable to be enlarged on bail on the ground of parity. There is no such distinguishable feature so as to distinguish the case of the present applicant from the aforementioned named co-accused who has already been enlarged on bail so as to deny him bail. It is further contended that even otherwise applicant is a man of clean antecedents inasmuch as, he has no criminal history to his credit except the present one. The applicant is in custody since 05.03.2023. As such he has undergone more than four months of incarceration. The police report under Section 173 (2) CrPC has already been submitted. As such the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized. However, up to this stage, there is nothing on record to indicate that custodial arrest of applicant is absolutely necessary during the pendency of trial. He therefore submits that the applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

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Per contra, the learned A.G.A. has opposed the prayer for bail. However, he could not dislodge the factual/legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

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Having heard the learned counsel for the applicant and the learned A.G.A. for the State, upon perusal of material brought on record, evidence, complicity of the accused, accusation made, nature and gravity of offence and coupled with the fact that main named accused Shane Alam, who is alleged to have dislodged the modesty of the prosecutrix as per the statement of the prosecutrix herself recorded under Section 164 CrPC having been enlarged on bail, the case of the present applicant being on better footing than the aforementioned named accused, the clean antecedents of applicant, the period of incarceration undergone, the police report in terms of Section 173(2) CrPC having been submitted, no such circumstance could be pointed out by the learned A.G.A. necessitating the custodial arrest of applicant but, without making any comments on the merits of the case, the applicant has made out a case for bail.

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Accordingly, the bail application is allowed.

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Let the applicant Atabul, involved in aforesaid case crime number, be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice :-

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(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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 sufÏcient cause, the trial court may proceed against him under section 229-A I.P.C.

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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., may be issued and if 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 I.P.C.

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(iv) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) 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 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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(v) The trial court may make all possible efforts/endeavour and try to conclude the trial within a period of one year after the release of the applicant.

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However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

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Order Date :- 11.7.2023. Rks.

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Digitally signed by :- RAJESH KUMAR SINGH High Court of Judicature at Allahabad

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

Case brief

What is this about?

What did the court decide?

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

Case brief

What is this about?

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