Heard learned counsel for the appellant, learned A.G.A. for the State and perused the material available on record.
This appeal has been preferred under Section 14 (A) (2) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, against the impugned order dated 27.7.2019 passed by learned Special Judge (POCSO Act)/Additional Sessions Judge, Court No. 4, Barabanki in Bail Application No. 1701 of 2019 (Manoj Awasthi Vs. State of U.P.), arising out of Case Crime No. 494 of 2017, under Sections 363, 366, 376-D I.P.C., Section 3(2)(V) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and Section 5/6 POCSO Act, Police Station Mohammadpur Khala District Barabanki. The Presiding Officer has rejected the bail application of the appellant vide impugned order dated 27.7.2019.
Counsel for the appellant has argued that in the F.I.R., the role assigned to the appellant is that of helping the co-accused. The counsel for the appellant has relied upon the statement of the complainant, where he specifically states that Manoj had no role in the incident. In the statement under Section 161 Cr.P.C. also no allegations were made against the appellant Manoj Awasthi, however a passing reference has been made in the statement under Section 164 Cr.P.C. The counsel for the appellant has argued that the statement under Section 164 Cr.P.C. does not inspire confidence as even the father of the victim was present in the Jeep. The appellant is in custody since 14.1.2018 and has no criminal antecedents.
Learned A.G.A. has opposed the appeal.
Considering the variance in the statements made as against the appellant and also the fact that there is nothing on record to suggest that the appellant if enlarged on bail will affect the trial or in any way influence the witness, without expressing any opinion on the merits of the case, this Court is of the view that the appellant is entitled to be released on bail.
Let appellant- Manoj Awasthi be released on bail in the aforesaid case crime number on his furnishing a personal bond of Rs.50,000/- and two sureties each in the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-
(i) The appellant shall not tamper with the evidence of witnesses and shall not commit any offence.
(ii) The appellant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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 of the Indian Penal Code.
(iv) In case, the appellant misuses the liberty of bail during trial 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.
(v) 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 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.
Appeal is accordingly allowed.
Order Date :- 30.9.2019 SR