Court No. - 67
Case :- CRIMINAL APPEAL No. - 2207 of 2021 Appellant :- Ankit Respondent :- State Of U.P.And Another Counsel for Appellant :- Rajesh Yadav Counsel for Respondent :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard Sri Rajesh Yadav, learned counsel for the appellant and learned A.G.A for the State and perused the record.
Learned AGA informs the Court that he has filed counter affidavit in the registry on 21.09.2021 through E-mode. For the sake of convenience has provided a copy of counter affidavit.
Office report dated 28.08.2021 indicates that relying upon the report of the CJM, Moradabad, the notices were served upon opposite party no.2 through her father. Despite of the service of notice no one has appeared on behalf of opposite party no.2 nor any counter affidavit has been filed so far.
Learned counsel for the appellant does not propose to file rejoinder affidavit to the counter affidavit filed by the State and wants to argue the case on merits.
This criminal appeal under Section 14 A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short "S.C./S.T. Act") has been filed for setting-aside the bail rejection order dated 19.04.2021 passed by Special Judge, SC/ST Act, Moradabad in Bail Application No.1200 of 2021 in Case Crime no.108 of 2021, under Section 376 I.P.C. and Section 3(2)(V) of SC/ST Act, Police Station- Bhojpur, District-Moradabad.
It is submitted by learned counsel for the appellant that the appellant is sole named accused in the FIR lodged by the victim herself on 20.03.2021 for the incident said to have been taken place on 19.03.2021 with the allegation that the age of the victim is 18 years belongs to the Balmiki caste and the victim is the student of BA-Ist year and developed certain amount of intimacy with the applicant. On this score she is sexually exploited by the applicant for last four months. On 19.03.2021 around six in the morning the appellant has given a call directing the victim to perform the court marriage. On his call the victim has joined the company of the applicant and went to another village Basai, where he refused to marry her.
I have perused the 164 Cr.P.C. statement of the victim in which she has clearly indicates that both of them are in the relation of last four months and were intended to marry but the family members of both the parties were not ready for their marriage. The victim is major girl and it was her conscious decision to join the company of the appellant. The medical report belies the allegation of sexual assault upon the girl as there were no injury over her external or internal part of the body. Even taken to be true on its face value, the victim is major girl, every action taken by the appellant is after obtaining the consent of the victim but it seems that the hurdles were created by the family members of the parties, who were not given consent for marriage, which has resulted into lodging of the present FIR. The appellant is languishing in jail since 03.04.2021.
Learned A.G.A opposed the prayer for bail.
The submission made by learned counsel for the appellant, prima facie, is quite appealing and convincing for the purpose of bail only.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, taking into account the manner and mode in which the appellant has been summoned and the period of detention already undergone, and also without expressing any opinion on merits of the case, I am of the view that the appellant has made out a case for bail.
Let the appellant-Ankit, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable 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 APPELLANT WOULD FULLY COOPERATE IN THE CONCLUSION OF TRIAL WITHIN ONE YEAR AND ANY TEMPERING OR WILLING TACTICS ON THE PART OF THE APPELLANT TO DELAY THE TRIAL WOULD WARRANT THE AUTOMATIC CANCELLATION OF BAIL.
(ii) THE APPELLANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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.
(iii) THE APPELLANT 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 IPC.
(iv) IN CASE, THE APPELLANT MISUSE THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPELLANT 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 IPC.
(v) THE APPELLANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON 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 APPELLANT 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.
However, it is made clear that any wilful violation of above conditions by the appellant, shall have serious repercussion on his bail so granted by this court.
Accordingly, the appeal succeeds and the same stands allowed. Impugned order dated order dated 19.04.2021 passed by Special Judge, SC/ST Act, Moradabad, is hereby set aside.
Order Date :- 24.9.2021 Abhishek Sri.
Digitally signed by RAHUL CHATURVEDI Date: 2021.09.28 15:34:37 IST Reason: Document Owner Location: High Court of Judicature at Allahabad