Court No. - 71
Case :- CRIMINAL APPEAL No. - 3109 of 2019 Appellant :- Mohd. Arbaz Raza Respondent :- State Of U.P. And Another Counsel for Appellant :- Shams Uz Zaman,Saiyad Iqbal Ahmed Counsel for Respondent :- G.A.,Praveen Kumar Sharma,Shailesh Kumar Mishra
Hon'ble Rajiv Gupta,J.
List has been revised. Learned counsel for opposite party no. 2 is not present to press the appeal.
Heard learned counsel for the appellant, learned A.G.A. for the State and perused the record.
The present criminal appeal has been filed U/s 14(A)(2) of S.C./S.T. Act against the order dated 11.04.2019, by which the bail application of the applicant in Criminal Misc. Bail Application No. 110 of 2019, (Mohd Arbaz Raza vs. State of U.P.) arising out of Case Crime No. 25 of 2019, under Sections 147, 148, 149, 323, 324, 354, 376, 504, 506 IPC, R/W Section 3
(2) (5) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, P.S. Nakhasa, District Sambhal, has been rejected vide order dated 11.04.2019.
Learned counsel for the appellant has filed supplementary affidavit stating therein that during course of trial, the statement of first informant Mukesh has been recorded as (P.W.1), however, he has not supported the prosecution story and has been declared hostile. In the cross-examination he stated he does not remember when Investigating Officer had recorded his statement. Even P.W. 2, the victim has not supported the prosecution story and has been declared hostile and on being cross-examined she stated that the police has not recorded her statement. On attention being drawn to her statement recorded under Section 164 Cr.P.C. she stated that the said statement was given on tutoring by the police and her family members. She also denied the fact that the appellant had committed rape upon her. Learned counsel for the appellant has next submitted that on the basis of aforesaid statement prima facie case for bail is made out against the appellant. He has next submitted that the appellant is in jail since 01.04.2019 and has no criminal history to his credit.
Per contra, learned A.G.A. has opposed the prayer for bail but could not dispute the aforesaid fact.
Upon hearing learned counsel for the parties, perusal of record and considering the complicity of accused, severity of punishment as well as totality of facts and circumstances, the appeal has substance.
The impugned order dated 11.04.2019 passed by Special Judge (SC/ST Act), Sambhal, is set-aside and the bail application of appellant stands allowed.
Let the appellant Mohd. Arbaz Raza be released on bail in Case Crime No. 25 of 2019, under Sections 147, 148, 149, 323, 324, 354, 376, 504, 506 IPC, R/W Section 3 (2) (5) of S.C./S.T.
Act, P.S. Nakhasa, District Sambhal, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of court concerned, subject to following conditions:-
(i) The appellant will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that he is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.
(ii) The appellant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The appellant will not indulge in any unlawful activities.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the appellant to prison.
Order Date :- 26.8.2019 v.k.updh.