Court No. - 52
Case :- CRIMINAL APPEAL No. - 1965 of 2018 Appellant :- Guljar @ Gulle Respondent :- State Of U.P. And 2 Others Counsel for Appellant :- Kishore Gaurav Kulshrestha Counsel for Respondent :- G.A.
Hon'ble Rajul Bhargava,J.
In the counter affidavit filed by learned AGA, annexure-CA-1 reflects that notice has been served on the respondent no. 2 and 3 yet no one appeared on their behalf.
Heard learned counsel for appellant, learned A.G.A. for the State- Respondent and perused the paper book.
This Criminal Appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed questioning the correctness of the order 19.1.2018 passed by Addl. Session Judge, Court no. 2, Jalaun at Orai in Bail Application no. 1560 of 2017 (Guljar alias Gulle vs. State) in Case Crime no. 464 of 2017, u/s 363, 366, 376 IPC, section 3/4 POCSO Act and under section 3(2)(V) of SC/ST Act, P.S. Kalpi, District jalaun whereby his prayer for bail has been rejected.
It is contended by counsel for the appellant that the prosecutrix is major girl and from the medical report, her age was determined to be 19 years whereas, as per the Adhar Card, her age is 21 years. He has laid emphasis on the statement of the prosecutrix u/s 164 Cr.P.C. in which she has stated that on 20.11.2017 she had gone with the applicant of her free will as she used to love him but she does not want to marry him, she further stated that she went to Gujrat where she stayed 5-6 days as husband and wife and physical relations were established with her consent. It is argued that prima facie offence u/s 363, 366, 376 IPC is not made out. The applicant is in jail since 9.12.2017.
Per contra learned AGA has vehemently opposed the prayer for bail and supported the impugned order. However he could not point out anything material on the contrary.
Considering the facts and circumstances of the case 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 and it is, accordingly, allowed. Impugned order dated 19.1.2018 is, hereby, set aside.
Let appellant, Guljar @ Gulle be released on bail in aforesaid Case Crime 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:
(i). 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;
(ii). 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;
(iii). 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.
(iv) 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 :- 27.7.2018 Dhirendra/