Court No. - 55
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6523 of 2018 Applicant :- Phool Chandra Mallah Opposite Party :- State Of U.P.
Counsel for Applicant :- Manoj Kumar Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the applicant, learned AGA for the State and perused the material on record.
By means of this application, the applicant who is involved in case crime no. 231 of 2012, under Sections 147, 352, 504, 302 IPC and Section 3(2)(5) SC/ST Act, P.S. Talgram, District Kannauj is seeking enlargement on bail during the trial.
Since the present bail application contains Section 3(2)(V) of the SC/ST Act and as such in the light of the Section 14A of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, bail should lie.
Learned AGA has drawn the attention of the Court to the Criminal Misc. Bail Application No. 4228 of 2017 (Ajay Bahadur @ Narad Rai @ another Vs. State of U.P. and another) in which learned Single Judge of this Court has opined that:-
"The remedy of appeal against the bail rejection order has been introduced by Act No.1 of 2016 with effect from 26.01.2016 vide S.O. 152 (E) dated 18.01.2016, thus, when the incident took place and FIR was lodged section 14-A of the said Act had not come into effect. The right of appeal is substantive right, if it is not conferred retrospectively it will come into effect prospectively. The rights' of parties' shall be determined when the proceedings commenced vide Garikapati Veeraya Vs. N. Subbiah Choudhry and others, AIR 1957 S.C. 540. "
Keeping in view, the present bail application was registered in the year 2012 and therefore the old Act would apply and the bail under Section 439 Cr.P.C. is maintainable under the cases related to SC/ST Act.
Learned counsel for the applicant submitted that the co-accused Jagvir has already been enlarged on bail by this Court by order dated 23.04.2013 passed in Criminal Misc. Bail Application No. 10684 of 2013. He further submitted that the role of the applicant is identical to that of co-accused- Jagvir. He lastly submitted that the applicant who is in jail since 01.09.2016, is also entitled to be enlarged on bail on the ground of parity.
Per contra learned AGA opposed the prayer for bail but could not dispute the aforementioned facts.
Considering the submissions made by learned counsel for the applicant as well as learned AGA and without expressing any opinion on the merits of the case, I find it to be a fit case for bail on the ground of parity.
In view of the above, let the applicant- Phool Chandra Mallah be released on bail on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned in case crime no. 231 of 2012, under Sections 147, 352, 504, 302 IPC and Section 3(2)(5) SC/ST Act, P.S. Talgram, District Kannauj with the following conditions:-
(i) THE APPLICANT/APPLICANTS SHALL FILE AN UNDERTAKING TO THE EFFECT THAT THEY 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 APPLICANT/APPLICANTS SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH THEIR COUNSEL. IN CASE OF THEIR ABSENCE , WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST THEM UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT/APPLICANTS MISUSE THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE THEIR PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANTS FAIL TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST THEM, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) THE APPLICANT/APPLICANTS 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 APPLICANTS ARE 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 THEM 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 APPLICANTS.
However, it is made clear that any violation of above conditions by the applicant/applicants, shall have serious repercussion on his/her bail so granted by this court and the trial court is at a liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 27.3.2018 Abhishek Sri.