Court No. - 67
Case :- CRIMINAL APPEAL No. - 3851 of 2019 Appellant :- Jagdish Respondent :- State Of U.P. And Anr.
Counsel for Appellant :- Dileep Singh Yadav,Pankaj Kumar Gupta Counsel for Respondent :- G.A.
With Case :- CRIMINAL APPEAL No. - 2279 of 2019 Appellant :- Jagdish Respondent :- State Of U.P. And Anr.
Counsel for Appellant :- Dileep Singh Yadav,Pankaj Kumar Gupta Counsel for Respondent :- G.A.,Anjani Kumar Dubey
Hon'ble Rahul Chaturvedi,J.
These are two Criminal Appeal Nos. 3851 of 2010 and 2279 of 2019.
On earlier occasion, the case was registered under section 308 IPC and other alive sections of IPC and after death of the deceased the case was converted under section 304 IPC along with other alive sections.
Heard learned counsel for the appellant, learned counsel for the complainant as well as 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, 2015 (in short "S.C./S.T. Act") has been filed for setting-aside the bail rejection order dated 15.05.2019 passed by Special Judge, SC/ST (PA) Act, Kannauj, in Bail Application No. 47 of 2019, (Jagdish Vs. State of U.P), ST No. 161 of 2018, arising out of case crime no. 325 of 2018, under Section 304 IPC and Section 3 (2) V SC/ST Act, Police Station- Tirwa, District- Kannauj.
After perusal of the record and with the consent of learned counsels for the parties, both the appeals are being decided with a common order.
It is submitted by learned counsel for the appellant that an unfortunate incident took place on 30.04.2018 and the wife of the injured/ deceased Smt. Nanhi Devi has succeeded in lodging the FIR on 27.06.2018. The case was initially registered under Sections 323, 504, 506 IPC and Section 3 (1) (DA) SC/ST Act, with the allegation that on 30.04.2018 at about 9.00 a.m., the deceased went to road side shop for having tea where the appellant was already sitting and he had started abusing by using caste symbol to the husband of informant on which when he restrained the appellant for abusing him, the appellant annoyed and fell him down on the stone and due to which the deceased had sustained injuries. It is next contended that MRI report shows the injury over his L-4 and L-5 of the spinal and thereafter he was referred to AIMS and eventually on 16.01.2019 he died.
Learned counsel for the appellant has submitted that the appellant has no role in the commission of crime. The appellant and the deceased are closed friends and the injured fell down during uplifting to each other at the tea stall and then the wife of injured cooked up a false and fabricated case and lodged the present FIR. The appellant is languishing in jail since 27.02.2019.
Learned A.G.A and learned counsel for the complainant opposed the prayer for bail and could not dispute the aforementioned facts.
I have perused the postmortem report which clearly indicates that bed sore ulcer present over the body of the deceased and he died on account of Septicemia. It appears that proper treatment was not given to him on account of resources therefore he could not be survived.
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- Jagdish, 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 15.05.2019 passed by Special Judge, SC/ST Act, Kannauj, is hereby set aside.
Order Date :- 28.11.2019 v.k.updh.