Court No. - 52
Case :- CRIMINAL APPEAL No. - 872 of 2018 Appellant :- Rahul Yadav Respondent :- State Of U.P. And Anr. Counsel for Appellant :- Rahul Mishra 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 behalf of respondent no. 2.
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 5.12.2017 passed by Additional Session Judge, Court no. 2, Azamgarh in Bail Application no. 2697 of 2017, Rahul Yadav vs. State of U.P., u/s 376, 504, 506 IPC and section 3(1)(Da), 3(1)(Gha), 3(2)(5), 3(2)(Ka) SC/ST Act, P.S. Aharaula, District Azamgarh whereby his prayer for bail has been rejected.
It is contended by counsel for the appellant that according to prosecution version, the victim is aged about 20 years and it is alleged that in the intervening night of 23/24.10.2017 the prosecutrix was sleeping in her room and the door was lying open, the applicant entered into the room of the victim and forcibly committed rape on her. According to F.I.R., the first informant and other inmates were also present in the house. It is argued that in the statement u/s 161 Cr.P.C. the victim has admitted having relationship with the applicant for the past one and half years and in the totality of facts and circumstances of the case it appears to be a case of consenting party. The appellant is in jail since 26.10.2017.
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 5.12.2017 is, hereby, set aside.
Let appellant, Rahul Yadav 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 :- 23.8.2018 Dhirendra/