Court No. - 53
Case :- CRIMINAL APPEAL No. - 5540 of 2017 Appellant :- Amarjeet @ Chotu Jaiswal Respondent :- State Of U.P. & Another Counsel for Appellant :- Sumit Kumar Srivastava Counsel for Respondent :- G.A.
Hon'ble Umesh Chandra Srivastava,J.
Counter affidavit filed today by learned AGA is taken on record.
Heard Shri Sumit Kumar Srivastava, learned counsel for the appellant, learned AGA for the State and perused the record.
This appeal has been filed against order dated 07.09.2017 of learned Additional Sessions Judge, Court No. 1, Maharajganj passed in Bail Application No. 990 of 2017 (Amarjeet @ Chotu vs. State of U.P.), arising out of Case Crime No. 212 of 2017, under section 376-D I.P.C., section 5/6g POCSO Act and section 3(2)(5)(a) of SC/ST Act, P.S. Kolhui, District Maharajganj, by which bail plea of appellant has been rejected.
Submission of learned counsel for the appellant is that order of the learned court below rejecting bail application of applicant-appellant is bad in law, as it has failed to consider that neither in F.I.R. nor in statement under section 161 Cr.P.C. there is allegation of sexual assault against appellant, the said allegation is against Brijesh and Somnath Yadav. Further submission is that learned court below has also failed to consider that appellant is not named in the F.I.R., his name has come into light in the statement of victim and that too, not as a culprit. Further submission is that learned court below has also failed to consider that appellant has no other criminal history and there is also no possibility of his either fleeing away from the judicial process or tampering with the witnesses.
Learned AGA while opposing the submissions of learned counsel for the appellant has submitted that it is true that appellant is not named in the F.I.R. nor the victim has said anything against him under sections 161 and 164 Cr.P.C. However, it is not disputed that appellant also sexually assaulted the victim on the behest of co-accused.
Having heard the submission of learned counsel of both sides, considering the facts and circumstances of the case, nature of accusation against appellant and without commenting on the merits of the case, I find it to be a case of bail.
In the result, appeal is allowed. Order dated 07.09.2017 passed by learned Additional Sessions Judge, Court No. 1, Maharajganj is set aside.
Let appellant-applicant Amarjeet @ Chotu Jaiswal be released on bail in Bail Application No. 990 of 2017 (Amarjeet @ Chotu vs. State of U.P.), arising out of Case Crime No. 212 of 2017, under section 376-D I.P.C., section 5/6g POCSO Act and section 3(2)(5)(a) of SC/ST Act, P.S. Kolhui, District Maharajganj on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
(i) The applicant-appellant will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that he is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.
(ii) The applicant-appellant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant-appellant will not indulge in any unlawful activities.
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.
Order Date :- 23.2.2018 Bhanu