Court No. - 24
Case :- CRIMINAL APPEAL No. - 4499 of 2017 Appellant :- Akshay Kumar Respondent :- State Of U.P. & Another Counsel for Appellant :- Anurag Dubey,Alkesh Singh Counsel for Respondent :- G.A.
Hon'ble Om Prakash-VII,J
Despite service of notice, none is present for the opposite party no.2 nor any counter affidavit is on record. Hence, on the request of the parties, the appeal is being decided at this stage. Counter affidavit filed by learned A.G.A. is on record.
This criminal appeal under Section 14-A (2) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred by the appellant with the prayer to set aside the bail rejection order dated 27.07.2017 passed by learned Additional Sessions Judge, Court no. 4, Mainpuri.
Documents annexed with the memo of appeal (certified copies of the lower court record) and documents available with the learned A.G.A. (instruction and case diary) are sufficient to decide the appeal, hence heard learned counsel for the appellant as well as the learned A.G.A. and perused the entire record.
It is submitted by the learned counsel for the appellant that the appellant is innocent and has been falsely implicated in this case. It is further submitted that the prosecution case is not supported by medical evidence nor by any independent witness. Referring to the statement recorded under Section 164 Cr.P.C. as well as the letter written by the victim to the appellant it was argued that the victim was the consenting party. Both appellant and victim used to meet regularly .It is further submitted that trial court while passing the impugned order did not take into account these facts and committed illegality. The appellant is in jail since 17.07.2017 and has no criminal history. It is lastly submitted that the impugned order rejecting the bail application of the appellant suffers from infirmity and illegality warranting interference by this Court.
On the other hand, learned AGA opposing the prayer for bail submitted that the appellant has committed the present offence. From the evidence available on record, a prima-facie case is made out against the appellant. There is no infirmity or illegality in the impugned order rejecting the bail application of the appellant.
I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the impugned order carefully.
Having regard to the facts and circumstances of the case and keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, the Court is of the opinion that the appellant has made out a case for bail. The Court below erred in rejecting the bail application. The impugned order suffers from infirmity and illegality and the same is liable to be set-aside and the appeal is liable to be allowed.
Accordingly, the appeal is allowed and the impugned order rejecting the bail application of the appellant is set-aside.
Let the appellant Akshay Kumar involved in Case Crime No. 279 of 2017, under Sections 354, 452, 506, I.P.C. and Section 7/8 POCSO Act and Section 3(2) I (V) SC/ST Act, P.S. Bewar, District Mainpuri be released on bail on furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.
1. The appellant will not tamper with the evidence during the trial.
2. The appellant will not pressurize/ intimidate the prosecution witness.
3. The appellant will appear before the trial court on the date fixed, unless personal presence is exempted.
4. The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
5. The appellant 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 to any police officer or tamper with the evidence.
In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.
Order Date :- 27.4.2018 Sanjeet