Court No. - 52
Case :- CRIMINAL APPEAL No. - 4539 of 2018 Appellant :- Ravi And Another Respondent :- State Of U.P. And Another Counsel for Appellant :- Santosh Kumar Shukla 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 his/her behalf.
Heard learned counsel for appellants, learned A.G.A. for the State- Respondent and perused the paper book.
This appeal has been filed against the judgement and order dated 27.7.2018 passed by Additional Sessions Judge, FTC-I/ Special Judge, SC/ST Act, Auraiya, in Bail Application No.966 of 2018, arising out of Case Crime No.518 of 2017, under Sections 363, 376-D, 506 I.P.C., 3(2) (5) of SC/ST Act and 3/4 of POCSO Act, P.S. Dibiyapur, District Auraiya, by which bail plea of appellant has been rejected.
Submission of learned counsel for the appellant is that according to medical examination and ossification test, the age of prosecutrix was 18 years. According to prosecution the daughter of informant was enticed away by the applicant on 22.9.2017 at about 5 P.M. and after committing rape on her the applicant and two other associates left her on 25.9.2017 and after her release from the clutches of accused, she narrated the entire story to her father. Learned counsel for the appellant has also drawn attention of this Court towards contradictory statement of prosecutrix made before the Doctor and under Section 164 Cr.P.C. It is argued that the first information report was lodged belatedly on 4.10.2017 for which no plausible explanation is forthcoming. The medical examination of the prosecutrix was conducted on 5.10.2017. The Doctor has opined that the medical examination and the pathological report does not confirm sexual assault. It is argued that this is a classical case of misuse of SC and ST Act. The applicant has no criminal history and he is in jail since 3.5.2018. Lastly it is submitted that similarly placed co-accused Deepu has been enlarged on bail by this Court in Criminal Appeal No. 940 of 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 27.7.2018 passed by Additional Sessions Judge, FTC-I/ Special Judge, SC/ST Act, Auraiya is, hereby, set aside.
Let appellants, Ravi and Vivek be released on bail in aforesaid Case Crime on their 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 appellants 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 appellants 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 appellants 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 appellants 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 :- 24.9.2018 Dhirendra/