Mohammad Shuaib Beg @ Shibu Vs State of U.P. Thru. Prin. Secy. Home Lko. and 4 Others

Neutral Citation No. - 2024:AHC-LKO:55430

Court No. - 14

Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 206 of 2024

Applicant :- Mohammad Shuaib Beg @ Shibu Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And 4 Others Counsel for Applicant :- Arjun Singh Kalhans,Anuj Verma,Lalit Kishore Tiwari,Mohd. Salman Khan,Saurabh Singh,Shikhar Chaube Counsel for Opposite Party :- G.A.,Sunendra Kumar

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Hon'ble Karunesh Singh Pawar,J.

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The present application under Section 438 Cr.P.C. has been filed seeking anticipatory bail apprehending arrest in FIR/Case Crime No.717 of 2023, under Sections 363, 366, 342, 376 of I.P.C. and Section 3/4 POCSO Act, Police Station- Mandiyaon, District- Lucknow

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Heard learned counsel for the applicant and learned A.G.A. for the State as well as learned counsel for the complainant.

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The co-ordinate Bench of this Court while granting interim protection vide order dated 06.02.2024 has passed the following order:-

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"1. Shri Sunendra Kumar, Advocate has filed his vakalatnama/ power on behalf of the opposite party No.5/ informant/ complainant and the same is taken on record.

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2. It is further submitted by him that some reasonable time be granted to him for the purpose of filing counter affidavit/ objections.

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3. Learned AGA, however, informs that he has procured complete instructions in the matter including up-to-date case diary and the investigation of this case is still pending.

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4. Heard learned counsel for the applicant as well as learned AGA for the State and perused the record.

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5. The instant application has been moved by the applicantMohammad Shuaib Beg @ Shibu, in Case Crime No. 717 of 2023, under Sections 363, 366, 342, 376 of I.P.C. and Section 3/4 POCSO Act, Police Station- Mandiyaon, District- Lucknow, with the prayer to enlarge him on anticipatory bail, as he is apprehending arrest in the above-mentioned case.

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6. Learned counsel for the accused-applicant while pressing the anticipatory bail application submits that it is a case of false implication. The F.I.R. of this case has been lodged with considerable delay on 23.12.2023 pertaining to the incident which had occurred on 30.09.2023 and the explanation which has been given for delayed lodging of the F.I.R. may not be accepted by any prudent person.

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7. It is further submitted that it is alleged in the F.I.R. that the prosecutrix, who at that point of time was aged about 17 years and 9 months, was called by the applicant by making a phone call in a market and from where, she was kidnapped/ abducted and was taken to his home by the applicant where she resided for about 15 days and was also subjected to sexual assault by the applicant.

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8. Highlighting above, it is vehemently submitted that if the statements of the prosecutrix recorded under Sections 161 and 164 Cr.P.C. as well as allegations which have been levelled in the F.I.R., are read conjointly, it will emerge that a false and highly improbable story has been cooked up by the informant. It is admitted to the prosecutrix that her marriage was scheduled to be solemnized with the applicant and she had gone to the market on his phone call. It is also admitted to the prosecutrix that she had remained in the house of the applicant for 15 days, where she could also hear the voice of the sister of the applicant and she did not make any attempt to fled away from there or even to raise any alarm. The applicant is not having any criminal antecedent. The prosecutrix is legally wedded wife of the applicant and due to some differences arisen subsequently between the families, this false case has been cooked up. However, the applicant will cooperate in the investigation and will remain present before the Investigating Officer as and when his presence would be required.

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9. Shri Sunendra Kumar, learned counsel appearing for informant/ complainant vehemently opposes the prayer of the anticipatory bail of the applicant on the ground that the theory of solemnizing Niqah by the prosecutrix with the applicant is false, concocted and could not be believed and a forged Niqahnama has been prepared by the applicant, however, he will bring all the necessary facts in the counter affidavit, for

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which some time be granted to him.

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10. Learned AGA has also opposed the prayer of anticipatory bail of the applicant.

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11. Having heard learned counsel for the parties and having perused the record, it is reflected that the marriage of the prosecutrix was fixed with the applicant. She had gone to meet him on the request made by the applicant by making a phone call to her and it is stated that from there, the prosecutrix was taken to the home of the applicant where she was kept for 15 days. Various submissions have been raised on behalf of the applicant in order to show that a fake and highly improbable case has been cooked up against the applicant. It is claimed that prosecutrix is the legally wedded wife of the applicant and also solemnization of marriage. A dispute has arisen between the families resulting in the lodging of the F.I.R.

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12. Be that as it may, having regard to the aforesaid facts and circumstances and keeping in view the law laid down by Hon'ble Supreme Court in Siddharam Satlingappa Mhetre Vs State of Maharashtra and Ors., MANU/SC/1021/2010, Sushila Aggarwal and Ors. Vs. State (NCT of Delhi) and Ors., MANU/SC/0100/2020, Shri Gurbaksh Singh Sibbia and Ors. v. State of Punjab, MANU/SC/0215/1980 : 1980 (2) SCC 565, and Nathu Singh Vs. State of U.P. and Others:(2021) 6 SCC 64, while granting some time to the informant for filing of objections/ counter affidavit, in the considered opinion of this Court, the personal liberty of the applicant may be protected till the next date of listing.

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13. Thus, list this case on 21.02.2024, by which date the State as well as the informant/ complainant, may file counter affidavit/ objections, if they so wish.

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14. It is provided that till the next date of listing or till the submission of Police Report under Section 173 (2) Cr.P.C., whichever is earlier, in the event of arrest of the applicantMohammad Shuaib Beg @ Shibu, involved in the above noted case, he shall be released forthwith on anticipatory bail on his furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the Station House Officer of the Police Station concerned/ Investigating Officer/ Arresting Officer/ Trial Court with the following conditions:

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(i) The applicant shall make himself available for interrogation or for discovery of any fact by a police officer as and when required;

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(ii) 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 them from disclosing such facts to the Court or to any police officer;

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(iii) The applicant shall not leave the country without the previous permission of the Court.

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15. The name of Shri Sunendra Kumar be shown as counsel for the informant/ complainant in the cause list, when the case is next listed."

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Learned counsel for the applicant submits that charge-sheet in the matter has been filed. Applicant has co-operated in the investigation and further undertakes to cooperate in the trial. He has no criminal antecedent.

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Learned A.G.A. as well as learned counsel for the complainant have vehemently opposed the bail application, however, could not dispute the fact that the applicant has no criminal history. He further submits that charge-sheet in the matter has been filed.

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On due consideration to the submissions advanced, perusal of the record so also the fact that charge-sheet in the matter has been filed, applicant has no criminal history, he has cooperated in the investigation and he shall cooperate in the trial, the interim protection granted by this Court vide order dated 06.02.2024 is made absolute in view of dictum of Apex Court in re: Sushila Aggarwal Vs. State (NCT of Delhi)-2020 SCC online SC 98.

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In view of the above, since, charge-sheet in the matter has been filed, the accused applicant- Mohammad Shuaib Beg @ Shibu is directed to surrender before trial court, if he is summoned to face trial for offence in question. The accused applicant shall be released on bail by the trial court on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the trial court concerned with the following conditions:-

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(i) 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 tamper with the evidence;

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(ii) The applicant shall not leave India without the previous permission of the court;

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(iii)The applicant shall not pressurize/ intimidate the prosecution witness;

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(iv)The applicant shall appear before the trial court on each date fixed unless personal presence is exempted;

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(v) In case of breach of any of the above conditions the court below shall have the liberty to cancel the bail;

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Any other reasonable restrictions/conditions which the trial court may deem fit and proper can be imposed.

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It is made clear that the observations made in granting bail to the applicant shall not in any way affect the trial Judge in forming his independent opinion based on the testimony of the witnesses.

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In view of the aforesaid, the application is allowed.

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Order Date :- 12.8.2024 Saurabh Yadav/-

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Digitally signed by :- SAURABH YADAV High Court of Judicature at Allahabad, Lucknow Bench

Mohammad Shuaib Beg @ Shibu v. State of U.P. Thru. Prin. Secy. Home Lko. and 4 Others

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Mohammad Shuaib Beg @ Shibu v. State of U.P. Thru. Prin. Secy. Home Lko. and 4 Others

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