Court No. - 53
Case :- CRIMINAL APPEAL No. - 4202 of 2017 Appellant :- Bhola Respondent :- State Of U.P. & Another Counsel for Appellant :- Beerendra Singh Pal,Manoj Kumar Keshari Counsel for Respondent :- G.A.
Hon'ble Umesh Chandra Srivastava,J.
Counter affidavit filed today by learned AGA is taken on record.
Heard Shri Beerendra Singh Pal, learned counsel for the appellant, learned AGA for the State and perused the record.
This appeal has been filed against order dated 19.06.2017 of learned In- charge Sessions Judge, Auraiya passed in Bail Application No. 505 of 2017 ( Bhola vs. State of U.P.), arising out of Case Crime No. 71 of 2017, under sections 376D, 506 I.P.C. read with section 3(2)v of SC/ST Act, P.S. Bidhuna, District Auraiya, by which bail plea of appellant has been rejected.
Learned counsel for the appellant has submitted that order of the learned court below rejecting bail application of applicant-appellant is bad in law, as it has failed to consider that F.I.R. of the incident has been lodged with delay of two months and three days without any plausible explanation. He has further submitted that learned court below has also failed to consider that prosecutrix is married lady having three children, who used to borrow money from co-accused Nikhil @ Chotu and on being demanded the same, she lodged false F.I.R. He has further submitted that learned court below has also failed to consider that in respect of incident in question the police had challaned both parties under section 107/116 Cr.P.C. which was indicative of the fact that no such incident had taken place as alleged in the F.I.R. He has further submitted that co-accused Nikhil @ Chhotu having similar allegation has been granted bail by another Bench of this Court vide order dated 08.09.2017 in Criminal Appeal No. 3365 of 2017. He has further submitted that learned counsel 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 aforesaid submissions of learned counsel for the appellant has submitted that in view of the fact that victim has supported the prosecution in her statement under sections 161 and 164 Cr.P.C., learned court below has committed no illegality in rejecting the bail application. He has, however, not disputed that similarly situated co- accused Nikhil @ Chhotu has been granted bail.
Having heard the submission of learned counsel of both sides, considering the facts and circumstances of the case 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 19.06.2017 passed by learned In-charge Sessions Judge, Auraiya is set aside.
Let appellant-applicant Bhola be released on bail in Bail Application No. 505 of 2017 ( Bhola vs. State of U.P.), arising out of Case Crime No. 71 of 2017, under sections 376D, 506 I.P.C. read with section 3(2)v of SC/ST Act, P.S. Bidhuna, District Auraiya, 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