Counter affidavit and rejoinder affidavit filed today are taken on record.
Despite service of notice, nobody is present on behalf of victim/opposite party no.2.
Heard learned counsel for the appellant, the learned A.G.A. for the State and perused the record.
This criminal appeal has been filed by the appellant against impugned order dated 19.09.2019, passed by the Special Judge, SC/ST Act, Lucknow in Bail Application No.5911 of 2019, (Himanshu Arora Versus State of U.P.), arising out of Case Crime No.361 of 2019, under Sections 376, 377, 419, 506 IPC and Section 3 (2) V of SC/ST Act, Police Station Aliganj, District Lucknow. Further a prayer has been made to enlarge the appellant/applicant on bail in the said case crime.
As per version of the F.I.R. complainant was wishing to marry second time, so she made her profile in Jeevansathi.com and through the said Jeevansathi.com complainant came in contact with the appellant and he shown himself as divorcee. For sometime appellant assured the complainant for marriage. On 30th July, 2019, appellant had gone for some official work to Shahjahanpur and the complainant had accompanied him at the request of appellant on the pretext that they will get sometime in loneliness to know each other. After reaching Shahjahanpur appellant booked a room in hotel. Initially the complainant refused to go to the hotel room but on his persuasion and assurance that he will not do anything wrong with her, she had gone in the hotel room where appellant forcibly made physical relation and later on refused to marry her. This occurrence had taken place on 30th July, 2019 and the F.I.R. was lodged on 19.08.2019 with inordinate delay. It is further alleged that after coming back to Lucknow she made further inquiry, then she could know that the appellant is already a married person and is having a son aged about 10 years. Then the complainant contacted the wife of the appellant and then she came to know the said fact.
It is submitted by learned counsel for the appellant that infact appellant was in contact with the prosecutrix/victim and with her own free will she had gone with the appellant to Shahjahanpur where she stayed with the appellant in a hotel room and maintained physical relation with her consent. In this case affidavit in support of the appeal has been filed by the wife of the appellant wherein she has stated that since before the incident prosecutrix was in contact with the deponent through mobile and complainant was in knowledge that the appellant was not a divorcee. Prosecutrix is aged bout 35 years and in her stateement under Section 164 Cr.P.C. she has stated that earlier she was married with some other person in 1999 but the marriage could not continue and in 2018 they had separated through divorce. It is submitted by learned counsel for the appellant that with her own free will prosecutrix had gone to Shahjahanpur and maintained physical relation with the appellant.
Learned A.G.A has, however, opposed the prayer for grant of bail but he has not disputed the above contention made by the learned counsel for the appellant/accused-applicant.
Accordingly, the appeal is allowed and impugned order dated 19.09.2019, passed by the Special Judge, SC/ST Act, Lucknow in Bail Application No.5911 of 2019, (Himanshu Arora Versus State of U.P.) is set aside.
Let appellant/applicant (Himanshu Arora) 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 subject to following additional conditions :-
(i) The appellant/applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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.
(ii) The appellant/applicant 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/applicant misuses the liberty of bail during trial 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/applicant 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 absence of the applicant 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.
Order Date :- 18.12.2019 ML/-