Court No. - 67
Case :- CRIMINAL APPEAL No. - 4149 of 2019 Appellant :- Mahendra Respondent :- State of U.P. and Another Counsel for Appellant :- Alok Kumar Singh Counsel for Respondent :- G.A.,Anurag Yadav
Hon'ble Rahul Chaturvedi,J.
Heard Sri Alok Kumar Singh, learned counsel for the appellant, Sri Anurag Yadav, 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 023.04.2019 passed by Additional Sessions Judge/Special Judge, SC/ST Act Ghaziabad, in Bail Application No.139 of 2019 (Mahendra vs State of U.P. and other), arising out of case crime no. 139 of 2019, under Sections 376, 504,506 IPC and Section 3 (2) 5 SC/ST Act, Police Station- Vijay Nagar, District- Ghaziabad.
It is submitted by the learned counsel for the appellant that the appellant is innocent and has falsely been implicated in the present case due to ulterior motive of informant. Learned counsel further submits that the prosecutrix/victim has herself lodged the First Information Report on 9.2.2019 referring to the date of incident dated 9.2.2018 to 9.2.2019 whereby it has been alleged that the victim/informant is aged about 21 years of age and unmarried lady belonging to the scheduled caste community and the appellant on the pretext to solemnize marriage with her and has repeatedly committed rape upon her for about one year and when she has pressed him to solemnized marriage, then the appellant has abused her and used caste derogating words and threatened for dire consequence and thereafter the present F.I.R was lodged against the appellant. Learned counsel has further submitted that after the first information report, the statement of victim was recorded under section 161 Cr.P.C, in her statement she has stated that she was assaulted by the appellant and other family members of the appellant and when she narrated the whole incident to her parents they have taken her to the police on 7.2.2019 and surprisingly she does not mention the date, time or day when the alleged sexual assault has been taken place.Learned counsel further submits that the victim has been medically examined on 9.2.2019 and as per the medical report, there is no mark of injury seen on any part of the body of the victim.It is next contended that the appellant has not committed any rape on the victim as such the allegation made against the appellant is totally false and concocted, hence no offence is made out against the appellant. Learned counsel further submits that the appellant is a peace loving and law abiding person and have no any previous criminal history against the appellant. The appellant is languishing in jail since 9.02.2019. If he is released on bail, he will not misuse the liberty of bail.
Learned counsel for the appellant has relied upon the judgement of Supreme Court of India in the case Pramod Suryabhan Pawar Vs. State of Maharashtra and another 2019 Law Suit (SC) 1504 decided on 21.8.2019.
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- Mahendra, 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 23.4.2019 passed by Additional Session Judge/Special Judge, SC/ST Act,Ghaziabad, is hereby set aside.
Order Date :- 29.11.2019 G.S