Court No. - 67
Case :- CRIMINAL APPEAL No. - 5791 of 2019 Appellant :- Bhalu @ Dheeraj Respondent :- State of U.P. and Another Counsel for Appellant :- Pankaj Bharti Counsel for Respondent :- G.A.,Raja Ram Kushwaha
Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the appellant, learned counsel for the complainant as well as learned A.G.A for the State and perused the record.
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 20.08.2019 passed by learned Special Judge, SC/ST Act/Sessions Judge, Shamli in Case Crime No. 867 of 2019 and Crl. Misc. Bail Application No. 980/2019, u/s 307, 376 IPC and 3(2)5 SC/ST Act, Police Station- Kotwali, District- Shamli.
It is submitted by learned counsel for the appellant that the FIR was got registered by father of the girl u/s 307, 376, 511 IPC, section 3(2)5 SC/ST Act and 7/8 POCSO Act against the appellant with the allegation of attempt to rape and gag the neck of his daughter by the appellant. As per medical, the age of the girl is 19-20 years. It is further submitted that the medical report totally belies the allegation of sexual assault upon the victim. The medical report shows that except multiple bluish colour contusion on both side of her neck, there is no injury over her private organ. Moreover, there is sea change in the version of the FIR and in the statements of the victim recorded u/s 161 and 164 Cr.P.C. It has lastly been submitted that the appellant is languishing in jail since 04.06.2019.
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 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 and without expressing any opinion on merits of the case, I am of the view that the appellant has made out a fit case for bail.
Let the appellant- Bhalu @ Dheeraj, 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 20.08.2019 passed by learned Special Judge, SC/ST Act/Sessions Judge, Shamli, is hereby set aside.
Order Date :- 26.11.2019 Nisha