Court No. - 52
Case :- CRIMINAL APPEAL No. - 7038 of 2017 Appellant :- Anoop Tiwari Respondent :- State Of U.P. & Another Counsel for Appellant :- Anand Priya Singh Counsel for Respondent :- G.A.
Hon'ble Rajul Bhargava,J.
As indicated in the counter affidavit filed by the learned A.G.A., notice has been served personally on respondent No.02, yet no one has appeared on his behalf to oppose the bail prayer in the instant appeal.
Heard Sri Anand Priya Singh, learned counsel for the appellant, learned AGA for the State and perused the record.
This appeal has been filed against judgement and order dated 03.11.2017 passed by learned Special Judge (POCSO Act)/Additional Sessions Judge, Court No.1, Mau passed in Bail Application No. 98 of 2017 (Anoop Tiwarivs. State of U.P.), arising out of Case Crime No. 502 of 2017, under Sections 354, 354-C, 354-D, 376, 511, 506 I.P.C., Section 3(2)5Ka of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act and 7/8 of The Protection of Children From Sexual Offences Act, P.S. Kotwali, District Mau, by which bail plea of appellant has been rejected.
Learned counsel for the appellant submitted that order of the learned court below rejecting bail application of applicant-appellant is bad in law. It is further submitted that the appellant has been falsely implicated in the present case by the first informant. The first informant and the prosecutrix have not placed correct facts. It is contended that based on vague allegations that the appellant attempted to commit rape, offences under Sections 376, 511 I.P.C. read with Section 7/8 of The Protection of Children From Sexual Offences Act are not made out. It is not made clear by the prosecutrix in her statement under Section 164 Cr.P.C. as to what acts were done by the appellant in order to make out an offence of attempted rape. The prosecutrix is at the verge of attaining majority. Learned counsel for the appellant further submitted that learned court below has also failed to consider that appellant has no criminal history to his credit and there is also no possibility of his either fleeing away from the judicial process or tampering with the witnesses.There is no prospect of early conclusion of trial. Thus the appellant who is in jail since 12.08.2017, deserves to be released on bail.
Learned AGA has vehemently opposed the bail prayer.
Having heard the submission of learned counsel of both sides, considering the facts and circumstances of the case, age of the appellant and nature of accusation against appellant and evidence in support of it and unlikelihood of conclusion of trial in near future, I find that a case for bail has been made out.
In the result, appeal is allowed. The judgement and order dated 03.11.2017 passed by learned Special Judge (POCSO Act)/Additional Sessions Judge, Court No.1, Mau is set aside.
Let appellant-applicant-Anoop Tiwari,be released on bail in aforesaid case on his 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 :- 25.7.2018 MN/-