Court No. - 52
Case :- CRIMINAL APPEAL No. - 1788 of 2018 Appellant :- Mahaveer Respondent :- State Of U.P. And Another Counsel for Appellant :- Jitendra Prasad Mishra Counsel for Respondent :- G.A.
Hon'ble Rajul Bhargava,J.
Annexure CA-1 of the counter affidavit filed by learned AGA indicates that notice has been served on respondent no. 2 yet no one appeared on behalf of respondent no. 2.
Heard learned counsel for appellant, learned A.G.A. for the State- Respondent and perused the paper book.
This Criminal Appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed questioning the correctness of the order 9.2.2018 passed by Additional Session Judge/ Special Judge, SC/ST Act, Banda in Case Crime no. 260 of 2016, u/s 376D, 323, 506, 366 IPC and section 3(2)V of SC/ST Act, P.S. Atarra, District Banda whereby his prayer for bail has been rejected.
It is contended by counsel for the appellant that the prosecutrix is aged about 25 years and a married lady and she has been divorced by her husband. It is argued that the prosecutrix with an ulterior motive in order to blackmail, the applicant has been falsely implicated in this case. During trial, the statement of the victim has been recorded as PW-1 in which in the examination in chief itself the prosecutrix has denied entire prosecution version and has been declared hostile, she has gone to the extent of denial of her statement u/s 164 Cr.P.C. Learned counsel states that the victim has not supported the prosecution version thus, the chances of conviction are very bleak. The appellant is in jail since 8.11.2017.
Per contra learned AGA has vehemently opposed the prayer for bail and supported the impugned order. However he could not point out anything material on the contrary.
Considering the facts and circumstances of the case and keeping in view the fact that the trial of the case is not likely to be concluded in near future, the appeal has substance and it is, accordingly, allowed. Impugned order dated 9.2.2018 is, hereby, set aside.
Let appellant, Mahaveer be released on bail in aforesaid Case Crime on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions:
(i). The appellant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence, if 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 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 misuses the liberty of bail 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 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.
Order Date :- 23.8.2018 Dhirendra/