Case :- CRIMINAL APPEAL No. - 667 of 2019 Appellant :- Raghvendra Respondent :- State Of U.P. And 2 Others Counsel for Appellant :- Jaysingh Yadav,D.N. Gupta,Vijay Kumar Gupta Counsel for Respondent :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the appellant as well as learned A.G.A for the State and perused the record.
This criminal appeal under Section 14 A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short "S.C./S.T. Act") has been filed challenging the order dated 20.11.2018 passed by learned Ist, Additional Sessions Judge/Special Judge(POCSO Act), Lalitpur in Criminal Misc. Bail Application No.78 of 2018 (Raghvendra Vs. State) arising out of case crime no.166 of 2018, under Sections 363, 376(2)(Jha) IPC and Section 3/4 of POCSO Act and Section 3(2)(5) of SC/ST Act, Police Station-Mahrauni, District- Lalitpur.
Submission made by learned counsel for the appellant is that the FIR was got registered by the mother of the victim against unknown persons under sections 363 IPC on 16.06.2018 informing the police that her daughter is missing since 05.06.2018 and this FIR came into existence after ten days i.e. on 15.06.2018. The girl was eventually recovered on 23.07.2018 after considerable delay of more than one and half months. The 161 and 164 Cr.P.C. statement are strange one that the appellant has called her on the pretext that her mother is fallen ill at Lalitpur and she joined the company of the appellant to serve her mother, where she was forcibly confined in a room and sexually assaulted by the appellant. The age of the girl, as per medical, is 16 years. There are no mark of injury over her labia minora. Her hymen is old torn and moreover, doctor has opined that she appears to be habitual of establishing physical relationship. There is nothing on record to show that she was ever molested or forcibly ravished. Her conduct too is indicative of the different fact altogether. The applicant is languishing in jail since 23.07.2018.
Learned A.G.A opposed the prayer for bail.
The submission made by learned counsel for the appellant, prima facie, is quite appealing and convincing for the purpose of bail only.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties and without expressing any opinion on merits of the case, I am of the view that the applicant has made out a case for bail.
number on their furnishing a personal bond and two reliable 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 APPLICANTS WOULD FULLY COOPERATE IN THE CONCLUSION OF TRIAL WITHIN ONE YEAR AND ANY TEMPERING OR WILLING TACTICS ON THE PART OF THE APPLICANT TO DELAY THE TRIAL WOULD WARRANT THE AUTOMATIC CANCELLATION OF BAIL.
(ii) THE APPLICANTS SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE 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.
(iii) THE APPLICANTS 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 IPC.
(iv) IN CASE, THE APPLICANTS MISUSE THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF 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 IPC.
(v) THE 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 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.
However, it is made clear that any wilful violation of above conditions by the appellant, shall have serious repercussion on his bail so granted by this court.
Accordingly, the appeal succeeds and the same stands allowed. Impugned order dated 20.11.2018 passed by learned Ist, Additional Sessions Judge/Special Judge(POCSO Act), Lalitpur, is hereby set aside.
Order Date :- 26.11.2019 Sumit S