Court No. - 52
Case :- CRIMINAL APPEAL No. - 7354 of 2017 Appellant :- Chandra Mohan Respondent :- State Of U.P. & Another Counsel for Appellant :- Balram Mishra Counsel for Respondent :- G.A.
Hon'ble Rajul Bhargava,J.
As indicated in Annexure CA-1 to the counter affidavit filed by learned AGA, it is stated that the notice has been duly served on opposite party no.2, however, no one has appeared on behalf of opposite party no.2 to argue the appeal.
Heard Shri Balram Mishra, learned counsel for the appellant, learned AGA for the State and perused the record.
This appeal has been filed against the judgement and order dated 24.11.2017 passed by Additional Sessions Judge, FTC-I / Special Judge, POCSO Act, Sant Kabir Nagar, in Bail Application No.1042 of 2017, arising out of Case Crime No.776 of 2017, under Sections 363, 366, 376 I.P.C., 3(1)(W) of SC/ST Act and 3/4 of POCSO Act, P.S. Dhanghata, District Sant Kair Nagar, by which bail plea of appellant has been rejected.
Learned counsel for the appellant submitted that in the first information report lodged on 30.6.2017 it is stated that on 18.6.2017 at about 6 P.M. the appellant along with cousins had kidnapped his minor daughter and he is at present in Bangalore. It is further averred in the first information report that love affair of the victim is going on with the appellant for the past 3-4 months and when the informant came to know, he had also beaten her daughter. Learned counsel for the appellant further submits that in the facts and circumstances of the case, especially the statement of prosecutrix under Section 164 Cr.P.C., she appears to be a consenting party and had travelled along with the appellant to Bangalore and had stayed there for about a month. As per medical report, the victim is aged about 16 years and if two years on the upper side is taken the victim is to be treated as major. Learned counsel for the appellant lastly submits that the appellant is languishing in jail since 26.10.2017 having no criminal antecedents.
Learned A.G.A. vehemently opposed the prayer for grant of bail to the appellant but could not point out anything material to the contrary.
Having heard the submission of learned counsel for the applicant- appellant, considering the facts and circumstances of the case 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 stands allowed. The order dated 24.11.2017 passed by Additional Sessions Judge, FTC-I / Special Judge, POCSO Act, Sant Kabir Nagar, in Bail Application No.1042 of 2017, arising out of Case Crime No.776 of 2017, under Sections 363, 366, 376 I.P.C., 3(1)(W) of SC/ST Act and 3/4 of POCSO Act, P.S. Dhanghata, District Sant Kair Nagar, is set aside.
Let appellant-applicant - Chandra Mohan, 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 :- 24.8.2018 Hasnain