Court No. - 52
Case :- CRIMINAL APPEAL No. - 1343 of 2018 Appellant :- Nanhey Babu Respondent :- State Of U.P. And Ors.
Counsel for Appellant :- Vikas Rana,Rajeev Kumar Singh Parmar Counsel for Respondent :- G.A.
Hon'ble Rajul Bhargava,J.
Annexure CA-1 of the counter affidavit filed by learned AGA indicates that notice has been served on respondent no. 2 yet no one appeared on his/her behalf.
Heard learned counsel for appellant, learned A.G.A. for the State- Respondent and perused the paper book.
This appeal has been filed against judgement and order dated 29.8.2017 passed by learned Additional Session Judge/ Special Judge (SC/ST Act), Bareilly passed in Bail Application No. 9000076 of 2017 (Nanhey Babu vs. State of U.P.), arising out of Case Crime No. 364 of 2017, under Sections 376-D I.P.C. and Section 3(2)5 of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, P.S. Cantt., District Bareilly, by which bail plea of appellant has been rejected.
Learned counsel for the appellant submitted that order of the learned court below rejecting bail application of applicant-appellant is bad in law. It is further submitted that appellant is not named in the F.I.R. The prosecutrix has taken name of the appellant in her statement recorded under Section 161 Cr.P.C. but in her statement recorded under Sections 164 Cr.P.C. she did not name any of the accused. The appellant was not put up for test identification. Besides it, similarly placed co-accused Manoj, Wali Mohammad, Sadar Pal alias Tauwa, Asif, Laik, Aqeel and Shaqoor Ahmad have been enlarged on bail by this Court as well as coordinate Bench of this Court on different dates. Learned counsel for the appellant further submitted that learned court below has also failed to consider that appellant has no other criminal history and there is also no possibility of his either fleeing away from the judicial process or tampering with the witnesses, therefore, the appellant also deserves to be released on bail.
Learned AGA has vehemently opposed the aforesaid submissions of learned counsel for the appellant but could not dispute that other similarly placed co-accused persons have been enlarged on bail.
Considering the facts and circumstances of the case and keeping in view the fact that the trial of the case is not likely to be concluded in near future, the appeal has substance and it is, accordingly, allowed. Impugned order dated 29.8.2017 passed by learned Additional Session Judge/ Special Judge (SC/ST Act), Bareilly is, hereby, set aside.
Let appellant, Nanhey Babu be released on bail in aforesaid Case Crime on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions:
(i). The appellant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence, if 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 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;
(iii). In case, the appellant misuses the liberty of bail 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.
(iv) 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.
Order Date :- 24.9.2018 Dhirendra/