Court No. - 67
Case :- CRIMINAL APPEAL No. - 172 of 2021 Appellant :- Manoj Kumar Rajbhar Respondent :- State Of U.P. And Another Counsel for Appellant :- Arvind Singh,Indra Kumar Chaturvedi(Senior Adv.) Counsel for Respondent :- G.A.,Ram Manohar Kashyap
Hon'ble Rahul Chaturvedi,J.
Learned counsel for the appellant is permitted to carry out the necessary correction in the memo of appeal and instead of section 366 IPC it should be section 376 IPC.
Heard Sri I.K. chaturvedi, learned Senior Advocate assisted by Sri Arvind Singh, learned counsel for the appellant, learned AGA and perused the record.
Despite of the clear undertaking given by the learned counsel for the appellant to the learned counsel for the informant Sri Ram Manohar Kashyap, he has not present in the Court. This is unbecoming act of an Advocate of the High Court that despite of the following undertaking given by the counsel for the appellant, he has absented, therefore, the Court has taken strong consideration to such type of conduct.
With the aid and help of learned AGA, the Court is proposing to decide the present appeal.
The instant appeal is targeted against the judgment and order dated 21.11.2020 whereby the Special Judge, SC/ST Act, Ghaziabad has rejected the bail application moved on behalf of the applicant in Crl. Misc. Bail Application No. 1734 of 2020, u/s 376, 313, 352, 504, 506 IPC and section 3(2)(v) of SC/ST Act, P.S. Birno, District Ghazipur arising out of the Case Crime No. 129 of 2020.
It is submitted by learned counsel for the appellant that the informant herself has got registered the FIR on 22.09.2020, u/s 376, 313, 352, 504, 506 IPC and section 3(2)(v) of SC/ST Act against the appellant and four others. The text of the FIR indicates that the informant belongs to the S.C. community and pursuing her course of B.T.C. in the year 2012, where she met with the appellant and both of them have developed certain amount of intimacy and thereafter, they corss all the limits and established physical relationship. This relationship has continued for seven good years on the pretext that the appellant would marry with her. Not only this, in the year 2018 she got pregnant and she was aborted and lastly about a month ago, the appellant has declined to marry with her, on this factual matrix of the case, the present FIR was got registered. As per medical report, the age of the girl is opined as she was 19 years of age but in her statement recorded u/s 164 Cr.P.C., she has stated that she is aged about 27 years. In her medical report, there is nothing abnormal was deducted but in her statements recorded u/s 161 and 164 Cr.P.C., she has almost retreited the same story has mentioned in the FIR. It is further contended that the appellant and the girl was a student of B.T.C., a well educated girl, developed an amount of intimacy with the appellant and thereafter, cross all limits, establishes physical relationship with the appellant and continued to do so for seven good years, clearly indicates that she was in consentual relationship with the appellant. The learned counsel for the appellant has drawn the attention of the Court that to the citation of Hon'ble Apex Court in the case of (i) Maheshwar Tigga Vs. State of Jharkhand reported in AIR2020SC4535, (ii) Sonu @ Shubhash Kumar Vs. State of U.P. and Another 2021 (SC) 163 and (iii) Pramod Suryabhan Pawar Vs. State of Maharashtra and Another (2019) 9 SCC 608.
Learned AGA has opposed the prayer for bail by making a mention that the victim was trapped by the appellant by extending the promise of marriage. The victim was an emotional and sentimental girl whereby she has cross the limits of decency.
The submissions made by learned counsel for the appellant, prima facie, quite appealing and convincing for the purpose of bail only.
Keeping in view that the girl who is aged about 27 years, who has understanding the far reaching repercussions of pre marital sex, her conduct shows that she was in consensual relationship with the appellant and she has accepted this relationship and continuing it for a period of seven good years and without expressing any opinion on merits of the case, I am of the view that the appellant has made out a fit case for bail.
Let the appellant Manoj Kumar Rajbhar, be released on bail in the aforesaid case crime number on furnishing a personal bond and two 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 SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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.
(ii) THE APPELLANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPELLANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) 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 THE HIM/HER IN ACCORDANCE WITH LAW.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
Keeping in view that though the complainant belongs to the S.C. community and as per arguments of learned counsel for the complainant that the accused appellant would create all sorts of impediments in the smooth trial. Besides this, after the release the accused appellant who belong to a higher caste may extend threat and pressurize the witnesses.
All these complaints may be raised by the complainant before S.P. Ghazipur who would examine objectively after having reports from his agencies at the earliest with regard to threat prospective of informant and his family members and use his own discretion in the matter, if it desirable, then during trial may provide security to complainant and his near family members.
With the observation the present stands allowed and the impugned order dated 21.11.2020 passed by Special Judge, SC/ST Act, Ghaziabad is hereby quashed.
Order Date :- 13.8.2021 Nisha