Court No. - 67
Case :- CRIMINAL APPEAL No. - 5713 of 2019 Appellant :- Himanshu Respondent :- State of U.P. and Another Counsel for Appellant :- Rajiv Chowdhury Counsel for Respondent :- G.A.,Vinod Kumar Srivastava,Virendra Singh
Hon'ble Rahul Chaturvedi,J.
Heard Sri Rajiv Chowdhury, learned counsel for the appellant, Sri Virendra Singh, learned counsel for the complainant as well as learned A.G.A for the State and perused the record.
By means of this criminal appeal under Section 14 A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 2015 (in short "S.C./S.T. Act") has been filed for setting- aside the bail rejection order dated 8.8.2019 passed by Special Judge, SC/ST Act Varanasi, in Bail Application No.2917 of 2019 arising out of case crime no. 280 of 2019, under Sections 342,376,120-B IPC and Section 3 (2) 5 SC/ST Act, Police Station- Cantt, District- Varanasi, whereby the learned Judge has rejected the aforesaid bail application.
It is submitted by the learned counsel for the appellant that the appellant is innocent and has falsely been implicated in the present case. The F.I.R has been lodged by the informant, victim against the applicant and co-accused Sonu Thakur under Sections 342,376,120-B IPC and Section 3 (2) 5 SC/ST Act, Police Station-Cantt, District- Varanasi, stating that the victim after finishing her work she was on the way to her house and in the meantime co-accused Sonu Thakur alias Sonu Singh caught hold her hands and dragged her in a room where the appellant closed the door from outside and thereafter Sonu Thakur forcibly made physically relation with her against her will. As per report of C.M.O, the age of victim is 19 to 20 years. Thereafter she was medically examined and according to medical report no any injury was found on any part of the body. Learned counsel further submits that no role of rape has been assigned to the appellant. The main role of rape has been assigned to co-accused Sonu Thakur alias Sonu Singh. Co- accused Sonu Thakur alias Sonu Singh has already been enlarged on bail by another bench of this Court vide order dated 14.3.2019 passed in Crl. Appeal No.6901of 2019. Hence, the appellant is also entitled for bail. The case of the present appellant stands on better footing to that of co-accused Sonu Thakur alias Sonu Singh. It is next contended that the appellant has not committed any offence as such the allegation made against the appellant is totally false and concocted, hence no offence is made out against the appellant. The appellant has no previous criminal history. The appellant is languishing in jail since 20.4.2019. If he is released on bail, he will not misuse the liberty of bail.
Learned A.G.A as well as learned counsel for complainant opposed the prayer for bail and could not dispute the aforementioned facts.
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, I am of the view that the appellant has made out a case for bail.
Let the appellant-Himanshu, 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 APPLICANT 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 HIS 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 willful 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 8.8.2019 passed by Special Judge, SC/ST Act, Varanasi, is hereby set aside.
Order Date :- 29.11.2019 G.S