Court No. - 67
Case :- CRIMINAL APPEAL No. - 1331 of 2021 Appellant :- Rajat Kumar Rai Respondent :- State of U.P. and Another Counsel for Appellant :- P.K. Singh,Chandan Sh,Chandan Sharma,P.K. Singh Counsel for Respondent :- G.A.,Rameshkumar
Hon'ble Rahul Chaturvedi,J.
Heard Sri Piyush Sinha, Advocate holding brief of Sri Chandan Sharma, learned counsel for the appellant, Sri Ramesh Kumar, learned counsel for the opposite party no.2 as well as learned A.G.A for the State and perused the record.
Counter affidavit filed by learned counsel for the opposite party no.2 today in the Court is taken on record. Learned counsel for the appellant does not want to file rejoinder affidavit and wants to address the Court on merits.
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 for setting-aside the impugned order dated 22.02.2021 passed by learned Special Judge, SC/ST Act, Ghazipur in Bail Application No.318 of 2021, arising out of Case Crime no.167 of 2020, under Sections 406, 419, 420, 323, 504, 506 I.P.C. and Section 3(1)(Da), 3(1)(Dha) of SC/ST Act, Police Station-Suhwal, District-Ghazipur.
Genesis of the case starts from lodging of the FIR by one Nar Singh Kanaujia on 01.11.2020 under sections 406, 419, 420 IPC against the sole named accused person with the allegation that on the pretext of providing service in the Railways, opposite party no.2 was defrauded and amount of Rs.six lacs were swindled from him but no service was provided to him. The opposite party no.2 has been cheated and there is undue enrichment of the aforesaid amount by the appellant. The appellant is languishing in jail since 02.02.2021.
Learned counsel for the opposite party no.2, Sri Ramesh Kumar has filed short counter affidavit on 05.09.2021 and in paragraph no.7 of the affidavit, he states that the parties have come to terms and the covenants of the compromise mentioned in paragraph no.7 is quoted hereinbelow :-
"That it is respectfully submitted that the opposite party no.2 has no object whatsoever if bail is granted to the applicant in case no.167 of 2020(Rajat Kumar Rai Vs. State of U.P.) under sections 406, 419, 420, 323, 504, 506 IPC and Section 3(1)(द), 3(1)(ध) of SC/ST Act on the condition that the applicant will pay a Demand Draft No.954273 dated 03.09.2021 drawn on Union Bank of India for an amount of Rs.1,50,000/- at the time of hearing of the bail. Further, an amount of Rs.50,000/- will be paid by the applicant after a period of 15 days. Thereafter, an amount of Rs.2,50,000/- will be paid by the applicant after a period of 18 months and the remaining amount of Rs.1,30,000/- will be paid by the applicant after a period of 14 months."
Pursuant to the aforesaid compromise, counsel for the appellant has handed over a demand draft of Union of India bearing no.954273 of Rs.1,50,000/- dated 03.09.2021, Sabalpur Kala Branch in favour of Raja Ram Kanaujia, father of the victim. The said instrument is being handed over in the open Court to the learned counsel for the opposite party no.2 who has taken the aforesaid instrument on behalf of his client-Sri Nar Singh Kanaujia and has acknowledged its receipt.
Learned counsel for the appellant on behalf of his client undertakes that he would abide by the covenants of the aforesaid compromise and would regularly pay the amount as and when it falls due and there would be no laxity on his part in making the payment.
However, it is made clear that this is a conditional order and in the event, the appellant fails to deposit the amount and if there is breach in condition of these covenants, it is open for the opposite party no.2 to approach the court concerned for cancellation of bail and the court concerned would pass suitable order recording the reasons for the breach.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties and keeping in view the covenants of the aforesaid compromise, I am of the view that the appellant has made out a case for bail.
Let the appellant-Rajat Kumar Rai, be released on bail in the aforesaid case crime number on his 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 APPELLANT WOULD FULLY COOPERATE IN THE CONCLUSION OF TRIAL WITHIN ONE YEAR AND ANY TEMPERING OR WILLING TACTICS ON THE PART OF THE APPELLANT TO DELAY THE TRIAL WOULD WARRANT THE AUTOMATIC CANCELLATION OF BAIL.
(ii) THE APPELLANT 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 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 IPC.
(iv) IN CASE, THE APPELLANT 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 APPELLANT 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 APPELLANT 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 APPELLANT 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 22.02.2021 passed by learned Special Judge, SC/ST Act, Ghazipur in Bail Application No.318 of 2021, arising out of Case Crime no.167 of 2020, under Sections 406, 419, 420, 323, 504, 506 I.P.C. and Section 3(1)(Da), 3(1)(Dha) of SC/ST Act, Police Station-Suhwal, District- Ghazipur, is hereby set aside.
Order Date :- 30.9.2021 Sumit S