Court No. - 67
Case :- CRIMINAL APPEAL No. - 982 of 2021 Appellant :- Indrajeet Gupta Respondent :- State of U.P. and Another Counsel for Appellant :- Rakesh Kumar Counsel for Respondent :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard Sri Rakesh Kumar, learned counsel for the appellant, learned AGA and perused the record.
As per the annexure no. 1 of the counter affidavit filed on behalf of the states indicates that the C.O., Banda vide communication dated February, 2021 indicates that notice was duly served upon opposite party no. 2 but till date neither he has engaged any counsel nor have filed any counter affidavit. The notice is sufficient. It seems that the opposite party no. 2 is no more interested in contesting the present appeal. As a last resort, taking the help of the learned AGA the Court is proposing to decide the appeal on merits.
By means of the appeal u/s 14 (A)(2) SC/ST Act, the appellant is challenging the order dated 10.12.2020 passed by Special Judge (SC/ST Act)/Additional Sessions Judge, Banda in Case Crime No. 84 of 2020, u/s 366, 392, 376-D IPC and section 3(2)(5) of SC/ST Act, P.S. Mataundh District Banda.
It is contended by learned counsel for the appellant that the FIR was got registered by the victim herself on 18.09.2020 for the incident said to have taken place on 05.03.2020 u/s 366, 392, 376-D IPC and section 3(2)(5) of SC/ST Act against three named accused persons including the appellant. It is further contended that there is no explanation coming forward for the inordinate delay in lodging of the FIR. As per the allegation of the FIR, all the three named accused persons have ravished the lady who is none other than the informant of the FIR. It is further submits that the victim was in the company of the appellant for 4 months and 10 days, she is a married woman and mother of two kids. It is next submitted that on 17.05.2020 she appear before the sub Inspector P.S. Mataundh, Banda whereby she has made a complaint against her own husband and has submitted that she went to her aunt's place at Mahola and since, she is residing with her aunt, she has declined as the allegation of alleged kidnapping fasten by her husband. She further states that she does not want to remain in the company of her husband. It has lastly been submitted that the conduct of the victim shows that she was in consensual relationship with the appellant.
Learned AGA opposed the prayer for bail by making a mention that the victim was subject matter of gang rape but he is unable to explain the reason that the FIR was got registered after six months of the incident and the victim lived in the company of the appellant without any resistance or objection or alarm.
The submissions made by learned counsel for the appellant, prima facie, quite appealing and convincing for the purpose of bail only.
Keeping in view the totality of circumstances and moreover the injured himself has turned hostile and 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 fit case for bail.
Let the appellant Indrajeet Gupta, be released on bail in the aforesaid case crime number on furnishing a personal bond and two 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 SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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.
(ii) THE APPELLANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPELLANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) 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 THE HIM/HER IN ACCORDANCE WITH LAW.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
Keeping in view that though the complainant belongs to the S.C. community and as per arguments of learned counsel for the complainant that the accused appellant would create all sorts of impediments in the smooth trial. Besides this, after the release the accused appellant who belong to a higher caste may extend threat and pressurize the witnesses.
All these complaints may be raised by the complainant before S.P. Banda who would examine objectively after having reports from his agencies at the earliest with regard to threat prospective of informant and his family members and use his own discretion in the matter, if it desirable, then during trial may provide security to complainant and his near family members.
With the observation the present stands allowed and the impugned order 10.12.2020 passed by Special Judge (SC/ST Act)/Additional Sessions Judge, Banda is hereby quashed.
Order Date :- 13.8.2021 Nisha