Court No. - 67
Case :- CRIMINAL APPEAL No. - 6271 of 2019 Appellant :- Ashish Gupta @ Gachya Respondent :- State of U.P. and Another Counsel for Appellant :- Sheetala Prasad Pandey Counsel for Respondent :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard Sri S.K.Mishra, Advocate holding brief of Sri S.P.Pandey, learned counsel for the appellant, learned A.G.A for the State and perused the record.
Order sheet shows that despite service of notice no one has turned up to attend the call on behalf of Smt. Geeta Devi.
With the help and aid of learned AGA, the Court is proposing to decide the present appeal.
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 02.09.2019 passed by Special Judge, SC/ST Act, Sant Kabir Nagar in Bail Application No.910 of 2019 arising out of case crime no.347 of 2019 under Sections 304, 504, 506 IPC and Section 3(2)(v) of SC/ST Act, Police Station-Khalilabad, District- Sant Kabir Nagar.
It is submitted by learned counsel for the applicant that the FIR was got registered after inordinate delay by opposite party no.2 on 27.05.2019 for the incident said to have been taken place on 22.05.2019 naming the applicant and one Saddam with the allegation that there was some scuffle took place between the deceased and named accused persons. The eye witness of the incident, namely, Kaushlya Das but surprisingly neither any inquest report was prepared nor the dead body was sent for post mortem, so as to ascertain the cause of death. There is injury report which shows that there is no injury external body over his person under the circumstances it is very difficult to ascertain the cause of death, except there is bald averments under Section 161 Cr.P.C. of eye witness Kaushlya Das, there is no other corroborative evidence to implicate the appellant. More over the FIR was got registered after delay of five days of which no plausible justification coming forward. The applicants are languishing in jail since 30.05.2019 having no criminal history.
Learned A.G.A as well as learned counsel for the complainant opposed the prayer for bail.
The submission made by learned counsel for the applicant, 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 and without expressing any opinion on merits of the case, I am of the view that the applicant has made out a case for bail.
Let the applicant-Ashish Gupta @ Gachya, be released on bail in the aforesaid case crime number on their 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 APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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.
(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) THE APPLICANT 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 APPLICANT 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 THE HIM/HER IN ACCORDANCE WITH LAW.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
However, it is made clear that any wilful violation of above conditions by the applicants, shall have serious repercussion on his bail so granted by this court.
Accordingly, the appeal succeeds and the same stands allowed. Impugned order dated 02.09.2019 passed by Special Judge, SC/ST Act, Sant Kabir Nagar, is hereby set aside.
Order Date :- 18.12.2019 Abhishek Sri.