Court No. - 50
Case :- CRIMINAL APPEAL No. - 2767 of 2018 Appellant :- Brijkishor Alias Birju Mali Respondent :- State Of U.P. And Another Counsel for Appellant :- Sushil Kumar Pal,Mayank Counsel for Respondent :- G.A.,Anil Kumar
Hon'ble Ravindra Nath Kakkar,J.
This criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, has been filed challenging the order dated 21.04.2018, passed by Special Judge, S.C./S.T. (P.A.) Act, Hamirpur in Criminal Misc. Bail Application No.83 of 2018 ( Brijkishor @ Birju Mali Vs. State of U.P.) in Case Crime No. 29 of 2018, under Sections 452, 376, 504, 506 I.P.C. and Section 3(2) 5 of SC/ST (Prevention of Atrocities) Act, 1989, Police Station-Sumerpur, District Hamirpur seeking bail in the aforesaid sections.
Since documents annexed with the memo of appeal (certified copies of lower Court bail record ) and the documents (instruction and case diary) available with the learned A.G.A. are sufficient to decide the appeal, the Court is proceeding to decide the same.
Heard learned counsel for appellant and learned Additional Government Advocate for the State-respondent and perused the record.
It is submitted by learned counsel for the appellant that the appellant is absolutely innocent and he has been falsely implicated in this case. It is next contended that there is delay of about 20 days in lodging the F.I.R. It is next contended that there are material contradictions in the statement of the prosecutrix recorded under Section 161 Cr.P.C. and 164 Cr.P.C. It is next contended that medical examination of the prosecutrix was conducted but no injury was found on her private part and the medical examination report does not support the prosecution version. It is next contended that appellant has been falsely implicated in this case only to extort money. It is next contended that alleged recovered mobile phone was handed over to the IO by the informant after about three months of incident which clearly indicates that the said mobile phone is planted for falsely implicating the appellant. It is next submitted that no iota of evidence has come on record against the appellant regarding commission of offence under Section 3 (2) (5) SC/ST Act. It is next submitted that appellant is languishing in jail since 17.02.2018 and he has no previous criminal antecedents. It is lastly submitted that the impugned order rejecting the bail application of the appellant suffers from infirmity and illegally warranting interference by this Court.
On the other hand, learned A.G.A. opposing the prayer for bail submitted that the appellant committed the present offence having knowledge that the victim belonged to scheduled caste community. From the evidence available on record, a prima-facie case is made out against the appellant. There is no infirmity or illegality in the impugned order.
Considering the facts and circumstances of the case and the arguments advanced on behalf of both the sides and keeping in view the fact that the trial of the case is not likely to be concluded in near future, the appeal has substance hence, appeal as also bail application filed before the court below are allowed, order dated 21.04.2018 is hereby set aside.
Let appellant, Brijkishor @ Birju Mali be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions:
1. The appellant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence, if 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;
2. 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 of the Indian Penal Code;
3. In case, the appellant misuses the liberty of bail and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant 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 of the Indian Penal Code.
4. The appellant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.
Order Date :- 31.10.2018 AKT