Appeal against rejection of bail in a rape case under IPC and SC/ST Act allowed. High Court set aside lower court order, noting investigation complete and no material available to change material witnesses' stance.
Appellant released on regular bail subject to furnishing requisite bail and surety bonds.
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Neutral Citation No. - 2024:AHC:115112
Court No. - 81
Case :- CRIMINAL APPEAL No. - 4755 of 2024
Appellant :- Shadab Respondent :- State of U.P. and Another Counsel for Appellant :- Ambreen Masroor,Sadrul Islam Jafri,Sr. Advocate Counsel for Respondent :- G.A.
Hon'ble Manoj Bajaj,J.
Supplementary affidavit filed today is taken on record.
Appellant-Shadab has filed this appeal to challenge the order dated 27th March, 2024 passed by the Additional Sessions Judge/Special Judge (SC/ST Act), Meerut, whereby his application under Section 439 Code of Criminal Procedure for grant of bail pending trial in Case Crime No. 96 of 2024, under Sections 452, 376, 506 IPC and Section 3(2)5 Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Police Station Mawana, District Meerut has been rejected.
Learned Senior Counsel for the appellant has argued that the opposite party no. 4 being neighbour of the appellant has falsely implicated him for the alleged commission of offences punishable under Section 376 IPC etc. Learned Senior Counsel submits that as per allegations, firstly, the appellant had raped her on 27th February, 2016, but the said incident was never reported. According to the learned Senior Counsel, the FIR was lodged after the alleged incident dated 29th February, 2024, which was allegedly witnessed by her son namely Kairav, born after her marriage on 25th December, 2016, but in support of the prosecution case, neither the statement of the victim's son is recorded nor any medical evidence relating to the alleged offence has been collected. He submits that it is not a case where the appellant committed any offence as
alleged, much less by use of force, therefore, the Special Court, Meerut has wrongly dismissed his application for grant of bail under Section 439 Cr.P.C. He prays that the impugned order be set aside and the appellant be released on bail.
The prayer is opposed by the learned State Counsel, who has argued that the appellant entered the house of the complainant on 29th February, 2024, and had put her son under the threat, and committed rape upon her. According to him, the impugned order is based upon the proper appreciation of the prosecution case and does not call for any interference.
However, during the course of hearing, it is fairly stated by the learned State Counsel that the statement of the son of the prosecutrix is not recorded during the investigation. Similarly, the electronic evidence of the alleged offences as alleged by the complainant has also not been recovered.
Despite service of notice, no one has put in appearance on behalf of the opposite party no. 2.
After hearing the learned counsel for the parties and considering their submissions, this Court finds that as per the complainant herself, she was known to the appellant, and concededly, after the first occurrence dated 27th February, 2016, she did not lodge any complaint or FIR, who got married on 25th December, 2016. Besides, a reading of the statement of prosecutrix recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. (Annexure No. 5 and Annexure S.A.-1, respectively) would show that in these statements, it is stated that the accused attempted to rape her on 29th February, 2024. Since, in respect of the allegations, the prosecution is yet to discharge the onus, therefore, further detention of the appellant behind the bars may not necessary for any useful purpose as the investigation of the case is complete and the final report under Section 173(2) Cr.P.C. stands filed on 3rd April, 2024. At this stage, there does not seem to be any
possibility in conclusion of the trial in near future.
That apart, the material witnesses are either the prosecutrix or the police officials, and at present, there does not seem to be any possibility of their being won over.
A perusal of the impugned order shows that the Special Court (SC/ST Act), Meerut has erroneously refused to exercise the discretion in favour of the accused as it is a fit case for extending the concession of regular bail to the appellant.
Resultantly, without meaning any expression of opinion on the merits of the case, the impugned order dated 27th March, 2024 is set aside, the bail application filed by the appellant under Section 439 Cr.P.C. is hereby accepted, and it is ordered that the appellant– Shadab , be released on regular bail in the above case crime subject to his furnishing the requisite bail bonds and surety bonds to the satisfaction of the trial court.
The appeal is allowed.
Order Date :- 19.7.2024 Brijesh
Digitally signed by :- BRIJESH KUMAR High Court of Judicature at Allahabad
2 issues framed by the court
Whether the impugned order refusing bail under Section 439 Cr.P.C. is a fit case to be set aside and bail granted.
Whether the prosecution has discharged the onus required for detaining the appellant behind bars given the absence of the victim's son and electronic evidence.
5 provisions across 3 enactments
Shadab
State of U.P.
Manoj Bajaj
Brijesh Kumar
As recorded by the court registry
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