Counter affidavit filed by learned A.G.A. on behalf of the State is taken on record.
Heard learned counsel for the appellant, learned A.G.A. for the State and perused the materials 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 29.07.2019 passed by Session's Judge-VIII/Spl. Judge, POCSO Act, Lucknow in Bail Application No. 3666 of 2019, arising out of Case Crime No. 146 of 2019, under Sections 376-D, 328 IPC, Section 3(2) V SC/ST Act, Police Station Naka Hindola, District Lucknow. The Presiding Officer has rejected the bail application of the appellant vide impugned order dated 29.07.2019.
Learned counsel for the appellant has argued that the allegations leveled are at variance with the statements given by the opposite party. Learned counsel for the appellant has also placed on record the Whatsapp messaging in between the appellant and the victim. The perusal of the statement under Section 164 states that the victim was taken on bike to the hotel Anusuia wherein rape was committed by the appellant and two other persons. There is no evidence on record as of any person working in the hotel. Although the recovery of the goods from the hotel room were duly signed by the Manager, thus the case of the appellant is that was case of a consensual intercourse. He further argues that the accused is in custody since 17.04.2019 and has no criminal antecedents. The medical examination of the victim is already on record and her statements have been recorded. There is no material on record to suggest that if the appellant is enlarged on bail the trial would be effected or there is any threat to the witness. Considering the inconsistencies in the statement the accused is enlarged on bail.
Let appellant- Mohd. Afzal Khan, 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 applicant 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 :- 27.9.2019 J.K. Dinkar