Ishfaq Ali @ Kaliya Vs State of U.P. Thru. Addl. Chief Secy. Home Deptt. of Home Lko. and 4 Others

Neutral Citation No. - 2025:AHC-LKO:27355

Court No. - 13

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7953 of 2024

Applicant :- Ishfaq Ali @ Kaliya Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Home Deptt. Of Home Lko. And 4 Others Counsel for Applicant :- Ankit Tripathi,Hari Om Gupta Counsel for Opposite Party :- G.A.,Dhananjay Trivedi

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Hon'ble Manish Mathur,J.

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Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State and learned counsel for opposite parties 2 and 3.

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This first bail application has been filed with regard to Case Crime No. 262 of 2024 under Section 352, 363, 366 IPC & 3(2)5 SC/ST Act & 16/17 of POCSO Act, Police Station Laharpur, District Sitapur.

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As per contents of FIR in which applicant is unnamed, the incident is said to have taken place on 15th May, 2024 at about 10.00 P.M. when the main accused Jalish alias Munna is said to have enticed away the minor daughter of informant.

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It has been submitted by learned counsel for applicant that he has been falsely implicated in the charges levelled against him only on account of the fact that he is brother of main accused. It is submitted that statement of victim recorded under Sections 161 and 164 Cr.P.C. are contradictory in nature with regard to role of applicant and even otherwise main allegations levelled are against the said Jalish @ Munna. It is submitted that the applicant is under incarceration since 30th May, 2024 with trial not yet having commenced.

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Learned A.G.A. as learned counsel for opposite parties 2 and 3 have opposed bail application with submission that statement of victim under Section 161 and 164 Cr.P.C. clearly indicate complicity of applicant under Sections 363 and 366 IPC atleast. It is however admitted that applicant does not have any previous criminal history.

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Upon consideration of submissions advanced by learned counsel for parties and upon perusal of material on record, prima facie subject to evidence led in trial, it appears that charge sheet against the applicant has been filed under Section 363 and 366 IPC and not with regard to other sections. The applicant is not named in the F.I.R. and has been introduced

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subsequently in the statement of victim recorded under Section 161 and 164 Cr.P.C. He is under custody since 30th May, 2024 and as per report dated 5th May, 2024 submitted by trial court, evidence has not yet commenced.

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Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation , reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :-

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"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."

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"27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."

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Looking to the nature of allegations levelled against the applicant and submission made in the bail application, without expressing any opinion on the merits of case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, particularly since no reasonable apprehension of tampering with the witnesses has been alleged, prima facie, this Court finds, the applicant is entitled to be released on bail in this case.

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Accordingly bail application is allowed.

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Let applicant Ishfaq Ali @ Kaliya involved in the aforesaid case crime be released on bail on his furnishing a personal bond and 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 dates 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 sufficient cause, the trial court may

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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 during trial 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, absence of the applicant is deliberate or without sufficient 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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Order Date :- 9.5.2025 prabhat

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Digitally signed by :- PRABHAT KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Ishfaq Ali @ Kaliya v. State of U.P. Thru. Addl. Chief Secy. Home Deptt. of Home Lko. and 4 Others

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Ishfaq Ali @ Kaliya v. State of U.P. Thru. Addl. Chief Secy. Home Deptt. of Home Lko. and 4 Others

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