Moin vs State Of U.P.

Ashwani Kumar Mishra, J

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

The present bail application has been filed by the applicant seeking enlargement on bail in Case Crime No. 469 of 2020, under Sections 147, 452, 376D, 323 IPC, Police Station Amroha Nagar, District Amroha.

Submission of learned counsel for the applicant is that a highly belated F.I.R. was registered by the victim herself after about 23 days of the incident against seven named accused persons, with the allegation that Arif, applicant Moin, Taiyab and Aasif have overpowered her and committed rape with her. In the statement u/s 161 Cr.P.C. the victim remained silent about any sexual atrocities upon her, however, in her statement u/s 164 Cr.P.C. the victim again changed her version. In addition to this, the victim also has given an affidavit dated 21.10.2020 exonerating the named accused Taiyab, Moin and Arif from the allegation of rape. It is further argued that the applicant is in jail since 15.04.2022 and the trial is not likely to conclude shortly and that the applicant undertakes that he will not misuse the liberty of bail and will cooperate in the conduct of trial. It is lastly contended the co-accused Arif, who has been assigned same role as that of applicant, has already been enlarged on bail by this Court in Criminal Misc. Bail Application No.17869 of 2021 vide order dated 18.10.2021.

Learned AGA opposes the bail application but facts as have been urged on behalf of the applicant are not seriously disputed.

Having considered the respective submissions advanced; perused the materials placed on record; considering the fact that victim has changed her stand at every stage which would be highly risky to rely upon her statement, the applicant has no criminal history, the applicant is entitled to be released on bail, at this stage. Above observations made in the bail order shall, however, not be construed as expression of opinion, on the merits, at the stage of trial.

Let the applicant - Moin involved in 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:-

i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.

(iii) 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.

(iv) 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.

(v) 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.

(vi) The applicant shall remain present, in person, before the trial court on the 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 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.

The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.

Accordingly, the present bail application is allowed.