Nushad S/O Sh. Iliyas v. State Of Haryana

CRM-M No.51754 of 2024 -1IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ***** CRM-M No.51754 of 2024 Date of decision : 20.12.2024 Naushad .............Petitioner

Versus

State of Haryana .......Respondent CORAM: HON'BLE MR. JUSTICE SUMEET GOEL Present: Mr. Dr. Rishi Pal Singh, Advocate, for the petitioner Ms. Priyanka Sadar, AAG, Haryana Mr. Mohd. Saleem, Advocate, for the complainant --- SUMEET GOEL, J. (ORAL) 1.

Present petition has been filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short 'BNSS') for grant of regular bail to the petitioner in case FIR No.72 dated 3.2.2024, under Sections 120-B, 201, 323, 376 (3) of the IPC and Section 4/22 of POCSO Act, 2012, registered at Police Station Chandni Bhagh, Panipat, District Panipat.

2.

The case set up in the FIR in question (as set out in the present petition by the petitioner) is as follows:- 'Above Application is attached To, SHO with Police Station Chandni Bagh Panipat Sir, I am Farah daughter of Kasim of Yasin Basi, Resident of Village Gohadigan, Jalalabad District Shamli Uttar Pradesh. I came to my mama Sajid place For approximately 15 days along with my mother Farameena near Chhoturag Chowk. Today on 03.02.2024. around 2'o

CRM-M No.51754 of 2024 -2clock, Me and my mother Farameena both were going back to my mama place by walking on road from Mittal mega Mall, when we came across a petrol pump near Gaal, Allila and Talib Wasiyan Khellkalan Mohalla. Kerana came on a motorcycle and Talib made me sit on the motorcycle, both of them took me to an unknown place, where they did wrong things to me when I started protesting, he hit me on wall. I got hurt and then both of them left me there and ran away. Then an auto diver helped me and dropped me to my mother near Mittal Mall. Action should be taken against them. SD FARAH Mohd. 9996480859 dated 03/02/2024 Today Police Station- Hasb Amad. On receiving the application, on finding that it is a rare crime and Section 323,376(3),376DA IPC CH4 POCSO ACT, Order No.

72 dated 03/02/2024 Section 323,376(3),376DA IPC CH4 POCSO ACT Police Station Chandni Bagh was registered in Panipat and computer process of 12 was checked. The copy L/ASI took into his custody for further action. The outstanding Nuklat HK special report will be sent to the concerned Afran Bala and Area Magistrate through Bajaria E-Mail. First information report DASI Suddesh S7, Panipat Police station Chandi Bagh District Panipat.'

3.

Learned counsel for the petitioner has argued that the petitioner is in custody since 24.4.2024. Learned counsel has further argued that the victim has been repeatedly changing her stand which is decipherable from two separate statements made by her under Section 164 of Cr.P.C. on 4.2.2024 and 26.4.2024. Learned counsel has further argued that the victim (when examined as a prosecution witness) has turned hostile. Learned counsel for the petitioner has further argued that the petitioner has been falsely implicated into the FIR in question. Thus, regular bail is prayed for.

4.

Learned State counsel has opposed the present petition by arguing that the allegations raised are serious in nature and thus the petitioner does not deserve the concession of the regular bail. Learned

CRM-M No.51754 of 2024 -3State counsel seeks to place on record custody certificate dated 19.12.2024 in Court, which is taken on record. 5.

Learned counsel for the complainant has submitted that the petitioner has actually not committed rape upon the victim but Khalil and Talib had actually committed rape upon the victim. Learned counsel has further submitted that, the stand of the victim has been at variance on account of threat being extended to her. Upon a pointed query by this Court, learned counsel for the complainant has not been able to point out any specific instance regarding thereat extended to the victim. 6.

Mr. Sarfaraj Hussain, Advocate has entered appearance on behalf of the aggrieved person namely Khalil. However, this Court does not find any occasion to grant any opportunity of hearing for the said allegedly aggrieved person namely Khalil.

7.

I have heard counsel for the parties and have gone through the available records of the case.

8.

The petitioner was arrested on 24.4.2024 whereinafter investigation was carried out and challan stands presented on 24.6.2024. Total 25 prosecution witnesses have been cited out of which only 2 have been examined till date. It is not in dispute that the victim has turned hostile (when examined as a prosecution witness) qua the petitionerNaushad. The rival contention of learned counsel for the parties; as to whether the petitioner has been falsely implicated into the FIR in question; the weightage/veracity required to be attached to the changing statements made by the victim under Section 164 of Cr.P.C., as also the

CRM-M No.51754 of 2024 -4testimony of the victim as a prosecution witness (wherein she has turned hostile); shall be gone into during the course of trial. This Court does not deem it appropriate to delve deep into these rival contentions, at this stage, lest it may prejudice the trial. Nothing tangible has been brought forward to indicate the likelihood of the petitioner absconding from the process of justice or interfering with the prosecution evidence. As per custody certificate dated 19.12.2024 filed by learned State counsel, the petitioner has already suffered incarceration for a period of about seven months and twenty-three days.

As per the said custody certificate, the petitioner is stated to be involved in another FIR. Indubitably, the antecedents of a person are required to be accounted for while considering a regular bail petition preferred by him. However, this factum cannot be a ground sufficient by itself, to decline the concession of regular bail to the petitioner in the FIR in question when a case is made out for grant of regular bail qua the FIR in question by ratiocinating upon the facts/circumstances of the said FIR. Reliance in this regard can be placed upon the judgment of the Hon'ble Supreme Court in Maulana Mohd. Amir Rashadi v. State of U.P. and another, 2012 (1) RCR (Criminal) 586; a Division Bench judgment of the Hon'ble Calcutta High Court in case of Sridhar Das v. State, 1998

(2) RCR (Criminal) 477 & judgments of this Court in CRM-M No.38822-2022 titled as Akhilesh Singh v. State of Haryana, decided on 29.11.2021, and Balraj v. State of Haryana, 1998 (3) RCR (Criminal) 191.

CRM-M No.51754 of 2024 -5Suffice to say, further detention of the petitioner as an undertrial is not warranted in the facts and circumstances of the case. 9.

In view of above, the present petition is allowed. Petitioner is ordered to be released on regular bail on his furnishing bail/surety bonds to the satisfaction of the Ld. concerned CJM/Duty Magistrate. However, in addition to conditions that may be imposed by the concerned CJM/Duty Magistrate, the petitioner shall remain bound by the following conditions:- (i) The petitioner shall not mis-use the liberty granted. (ii) The petitioner shall not tamper with any evidence, oral or documentary, during the trial.

(iii) The petitioner shall not absent himself on any date before the trial.

(iv) The petitioner shall not commit any offence while on bail. (v) The petitioner shall deposit his passport, if any, with the trial Court.

(vi) The petitioner shall give his cell-phone number to the Investigating Officer/SHO of concerned Police Station and shall not change his cell-phone number without prior permission of the trial Court/Illaqa Magistrate.

(vii) The petitioner shall not in any manner try to delay the trial. 10.

In case of breach of any of the aforesaid conditions and those which may be imposed by concerned CJM/Duty Magistrate as directed hereinabove or upon showing any other sufficient cause, the State/complainant shall be at liberty to move cancellation of bail of the petitioner.

11.

Ordered accordingly.

CRM-M No.51754 of 2024 -612. Before parting with this order, this Court finds itself constrained for referring to the manner in which the victim-prosecutrix had been incessantly changing her stance qua the alleged incident. This persistent change in stance amounts to abuse of process of law. Without further commenting on the merits of this aspect of the matter, it is left open to the wisdom of the trial Court to take appropriate action, in accordance with law, against the victim if relevant material so emerges. 13.

Nothing said hereinabove shall be construed as an expression of opinion on the merits of the case.

(SUMEET GOEL) JUDGE 20.12.2024 Ashwani Whether speaking/reasoned:

Yes/No Whether reportable:

Yes/No