Court No. - 52
Case :- CRIMINAL APPEAL No. - 3455 of 2018 Appellant :- Kaushi Gautam @ Kaushi Alvi Respondent :- State Of U.P. And Anr.
Counsel for Appellant :- Vidit Narayan Mishra Counsel for Respondent :- G.A.,Mamta Sen
Hon'ble Rajul Bhargava,J.
The order-sheet of this case reflects that notice as directed by this Court has been served on opposite party no.2 through C.J.M., Ghaziabad but no one has appeared on her behalf even in the revised call of the cause list.
Heard Shri Vidit Narayan Mishra, learned counsel for the appellant, learned AGA for the State and perused the record.
This appeal has been filed against the judgement and order dated 11.6.2018 passed by Additional Sessions Judge/ Special Judge, SC/ST Act, Ghaziabad, in Bail Application No.3569 of 2018 (Kaushi Gautam @ Kaushi Alvi vs. State of U.P.), arising out of Case Crime No.976 of 2017, under Sections 420, 506, 342, 376 I.P.C. & 3(2)5 of SC/ST Act, P.S. Vijay Nagar, District Ghaziabad, by which bail plea of appellant has been rejected.
Submission of learned counsel for the appellant is that admittedly the prosecutrix is aged about 28 years and as per her statement recorded under Section 164 Cr.P.C. she had ran away with the applicant and had solemnized marriage in a Temple on 10.6.2012. It appears that on account of certain differences between them, she moved an application under Section 156(3) Cr.P.C. with the allegation that the applicant in fact Muslim and suppressing his religion and projecting himself to be Hindu, the marriage was solemnized by misrepresentation and fraud was played on her. He further submitted that the appellant has also instituted a suit under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. It is argued that prima-facie, no offence under Section 376 IPC is made out. Lastly, it is stated that the appellant is languishing in jail since 1.6.2018 having no criminal antecedents.
Per contra, learned AGA vehemently opposed the bail but could not dispute that the marriage of the prosecutrix was solemnized with the applicant for about five years back and they lived as husband and wife.
Having heard the submission of learned counsel for the applicant- appellant, considering the facts and circumstances of the case and nature of accusation against appellant and evidence in support of it and unlikelihood of conclusion of trial in near future, I find that a case for bail has been made out.
In the result, appeal stands allowed. The order dated 11.6.2018 passed by Additional Sessions Judge/ Special Judge, SC/ST Act, Ghaziabad, in Bail Application No.3569 of 2018 (Kaushi Gautam @ Kaushi Alvi vs. State of U.P.), arising out of Case Crime No.976 of 2017, under Sections 420, 506, 342, 376 I.P.C. & 3(2)5 of SC/ST Act, P.S. Vijay Nagar, District Ghaziabad, is set aside.
Let appellant-applicant- Kaushi Gautam @ Kaushi Alvi, be released on bail in aforesaid case on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
(i) The applicant-appellant will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that he is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.
(ii) The applicant-appellant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant-appellant will not indulge in any unlawful activities.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
Order Date :- 5.9.2018 Hasnain