Court No. - 52
Case :- CRIMINAL APPEAL No. - 2308 of 2018 Appellant :- Rahul Mishra Respondent :- State Of U.P. And 2 Others Counsel for Appellant :- Om Narayan Pandey 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 and 3 yet no one appeared on behalf of respondent nos. 2 and 3.
Heard learned counsel for appellant, learned A.G.A. for the State- Respondent and perused the paper book.
This Criminal Appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed questioning the correctness of the order 7.3.2018 passed by Additional Session Judge, court no. 2, Shahjahanpur in Bail Application no. 399 of 2018 (State vs. Rahul Mishra and another) in Case Crime no. 2659 of 2017, u/s 376D, 323, 504, 506 IPC and 3(2)5 SC/ST Act, P.S. Sindhauli, District Shahjahanpur whereby his prayer for bail has been rejected.
It is contended by counsel for the appellant that the victim is a married lady aged about 30 years. The F.I.R. was lodged with inordinate delay after seven days of the incident on 13.7.2017 in which allegation of gang rape against the appellant and co-accused has been levelled. Learned counsel submits that he has been falsely implicated in this case by the first informant for extraneous reason. He further submitted that the victim was examined after seven days of the incident in which no internal or external injury has been noted in the medical report. Lastly it is contended that the appellant is in jail since 27.1.2018.
Per contra learned AGA has vehemently opposed the prayer for bail and supported the impugned order. However he could not point out anything material on the contrary.
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 7.3.2018 is, hereby, set aside.
Let appellant, Rahul Mishra 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 :- 21.8.2018 Dhirendra/