Court No. - 52
Case :- CRIMINAL APPEAL No. - 2710 of 2018 Appellant :- Rupesh @ Deli Respondent :- State Of U.P. And Another Counsel for Appellant :- Satya Priya Mishra,Sudhir Kumar Singh Counsel for Respondent :- G.A.
Hon'ble Rajul Bhargava,J.
Counter affidavit filed by learned AGA is taken on record. In the counter affidavit, annexure CA-1 reflects that notice has been served on respondent no. 2 yet no one appeared on his behalf.
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 12.4.2018 passed by Additional Session Judge, Court no. 4, Maharajganj, u/s 376, 511, 504, 506, 323 IPC and 3(2)(5) SC/ST Act and 7/8 POCSO Act in Bail Application no. 426/2018 bearing Case Crime no. 117 of 2018, P.S. Pharenda, District Maharajganj whereby his prayer for bail has been rejected.
It is contended by counsel for the appellant that the appellant has been falsely implicated in this case and merely a bald and vague allegation of attempted rape has been alleged. From the statement of the prosecutrix recorded u/s 161 and 164 Cr.P.C. it appears that at best it was a case of outraging modesty of the prosecutrix and what act was done by the applicant to constitute offence to attempt rape has not been specifically stated by the prosecutrix. In the medical report some superficial multiple abrasion of 2.5 cm X 2.00 cm at right side of face has been noted. The appellant is in jail since 29.3.2018.
Per contra learned AGA has vehemently opposed the prayer for bail and submitted that there is specific allegation of attempt made by the applicant to commit rape but could not point out any medical report to substantiate the said fact.
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 12.4.2018 is, hereby, set aside.
Let appellant, Rupesh @ Deli 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 :- 31.7.2018 Dhirendra/