Court No. - 74
Case :- CRIMINAL APPEAL No. - 1630 of 2021 Appellant :- Rajendra Mavi Respondent :- State of U.P. and Another Counsel for Appellant :- Abhishek Gupta,Sunil Kumar Counsel for Respondent :- G.A.
Hon'ble Pradeep Kumar Srivastava,J.
Heard learned counsel for the appellant, learned A.G.A. for the State and perused the record.
As per office report notice has already been served on respondent no. 2 but none is present on behalf of respondent no. 2.
This criminal appeal has been filed by the appellant Rajendra Mavi with a prayer to set aside the judgment and order dated 09.02.2021, passed by Special Judge SC/ST (P.A.) Act, Gautambudh Nagar, in Criminal Misc. Bail Application No. 228 of 2021, arising out of Case Crime No. 329 of 2019, under Sections 376, 493, 313, 504, 120B I.P.C. and Sections 3(2)A SC/ST Act, Police Station Dadri, District Gautambudh Nagar.
Feeling aggrieved by the aforesaid impugned order, the present criminal appeal has been filed.
The first information report versions is that the informant came to Greater Noida to her elder sister house and started living with her. The appellant met her there and he developed his relationship with her by saying that he is in love with her and he would marry with her. Thereafter, before the mother of informant, he solemnized marriage with the informant and he started living with her in house in Greater Noida. The appellant said to her that his family will not be agreeing to this marriage and he will took her to his house later on. The informant insisted for a registered marriage but the appellant avoided and continued making relationship with her. She got pregnant in December, 2017 and the pregnancy was forcibly aborted by him by recourse to a hospital. Five months back, the appellant was sent to jail in relation to smuggling of liquor and in gangster case and when he came back from jail against, the informant insisted for marriage. The appellant refused and used abusive language with caste relating words and break the relationship. thereafter, the informant came to know that he was already married and having children and he was making false promise for marriage and on that promise, he was sexually abusing her and making sexual relationship with her, therefore, the first information report was lodged.
Learned counsel for the applicant has submitted that the appellant has been falsely implicated in the present case and he has not committed such crime. Further submission is that the bail rejection order is based on imaginary and false ground as there is no legal evidence, direct, indirect or circumstantial. The appellant has no relationship with the respondent no. 2. The respondent no. 2 was having friendship with the wife of the appellant and because of this friendship, he gave the money to the respondent no. 2 through RTGS. The dispute arose when the said money was demanded back by appellant. To avoid the payment, a false case has been lodged. It has also been submitted that the respondent no. 2 is already married. The incident is said to have taken place from April, 2017 and divorce has been granted to the respondent no. 2 in the year, 2019. As such, the legal marriage could not take place between the appellant and the respondent no. 2. She has made false allegation that the appellant entered into marital relationship with her. On the contrary, he and respondent no. 2 both were already married and there is no question of further marriage by them on the alleged date. Learned Special Judge has ignored all these aspects and has rejected the bail application by passing the aforesaid impugned order. Learned counsel for the appellant has submitted that the criminal history of the appellant shown against him has been well explained by the appellant and in almost all cases, the accused-appellant has been granted bail by different course and the bail orders have been annexed with the appeal. Hence, the impugned order is liable to be set aside and the accused-appellant is entitled to be enlarged on bail.
Learned A.G.A. has vehemently opposed the the prayer and has submitted that by making false promise of marriage. The accused-appellant has made continued relationship with the informant who belongs to SC community and sexually abused her. The learned Special Judge has taken into consideration all the aspects of the matter and considering the huge criminal history of the accused-appellant, rejected the bail application. Further submission is that there is no error in the impugned order, the accused-appellant does not deserve bail and the appeal is liable to be dismissed.
Considered the submissions of both the sides, it appears that there was a prolonged relationship between the parties and the informant herself was married and she took divorce only during the continuation of the said relationship, as such she must have realized the consequences of the relationship. It cannot be said that merely believing on the false promise of marriage, she continued in relationship. It was an act of consent on the part of the victim herself, particularly, in view of the fact that she continued in the relationship for a very long time, therefore, the allegation of rape prima-facie is not sustainable. Clearly, the learned Special Judge has not considered the fact that when the relationship continued for such a long time and thereafter, when the relationship was broken only then allegation of rape was made. As such, the learned Special Judge has committed apparent illegality in passing the impugned order and the same is liable to be set aside and the appeal is liable to be allowed.
Accordingly, the appeal is allowed and the impugned order dated 09.02.2021, passed by Special Judge SC/ST (P.A.) Act, Gautambudh Nagar, in Criminal Misc. Bail Application No. 228 of 2021 is hereby set aside.
Let the appellant namely Rajendra Mavi involved in Case Crime No. 329 of 2019, under Sections 376, 493, 313, 504, 120B I.P.C. and Sections 3(2)A SC/ST Act, Police Station Dadri, District Gautambudh Nagar is granted bail on his furnishing a personal bond and two sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions:-
(i) The appellant will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that appellant is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.
(ii) The appellant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The appellant will not indulge in any unlawful activities.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the appellant to prison.
Order Date :- 29.7.2021/sailesh