Court No. - 67
Case :- CRIMINAL APPEAL No. - 6853 of 2019 Appellant :- Gulab Gupta Respondent :- State of U.P. and Another Counsel for Appellant :- Sadhna Upadhyaya,Yash Dev Upadhyaya Counsel for Respondent :- G.A.
Hon'ble Rahul Chaturvedi,J.
Rejoinder affidavit filed today, is taken on record.
Despite sufficient service upon the opposite party No.2, no one appears on behalf of the opposite party, neither any counter affidavit has been filed.
In these circumstances, I am proposed to decide the appeal with the assistance of learned A.G.A.
Heard Sri Mrs. Sadhna Upadhyaya, learned Senior Counsel assisted by Sri Yash Dev Upadhyaya, learned counsel for the appellant, 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 Criminal Misc. Bail Application No. 1012 of 2019 (Gulab Gupta vs. Stte of U.P.) rejection order dated 30.08.2019 passed by the Special Judge (S.C./S.T.) Act Siddharth Nagar in Case Crime No. 206 of 2019 under Sections 366, 376 IPC, 1860 and Section 3 (2) (V) S.C./S.T. Act, 1989, Police Station Uska Bazar, District Siddharth Nagar, U.P.
It is submitted by learned counsel for the appellant that the applicant has falsely been implicated in this case. The complainant and the applicant are residents of adjoining hamlests about less than half a kilometer far. Applicant got married about three years ago. It has also been submitted that from perusal of the statement of the victim recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. shows that she was in love with the applicant and had physical relations with the applicant for last 1/ 1-2 years. The applicant allegedly married to the prosecutrix in temple forcefully but did not take her to his house. Thereafter the present F.I.R. has been lodged by the father of the victim. It has further been submitted that as per age certificate issued by the office of C.M.O. the age of the victim is found 19 years. It is next submitted that she is a major girl and he had knowledge that applicant is already a married man. Despite of full knowledge about above facts, she had established corporeal relationship with the appellant. It is not expected from a major girl to cross the limits of decency unless she has consented from the same. From records, it is not born out that the consent was obtained from ant threat or coercion. As per her own admission that she was in the relationship with appellant for 1/1-2 years speaks volumes about the gravity and depth of the relationship and her consent could easily be inferred. The applicant is languishing in jail since 02.07.2019 having no criminal history and the trial is not conclude in near future. It has further been submitted that if he enlarged on bail, he will not misuse the liberty of bail.
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, and period of incarceration undergone by him, I am of the view that the appellant has made out a fit case for bail.
Let the appellant- Gulab Gupta, 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 THEIR 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 30.08.2019 passed by learned Special Judge (S.C./S.T.) Act Siddharth Nagar, is hereby set aside.
Order Date :- 17.12.2019 Pr/-