Sri Anurag Srivastava 'Kaalesh', Sri Sudhir Kumar and Sri Suhail Kasif, learned counsel for the appellant and Ms. Parul Kant, learned AGA for the State. None for the private respondent though served.
The appeals are formally admitted for hearing.
With the consent of parties, appeals are heard finally.
Challenge in all these appeals is to the order dated 05.04.2019 passed by II Additional District & Sessions Judge/Special Judge Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Lucknow in Bail Application Nos. 1840 of 2019 and 1848 of 2019 & 1820 of 2019, whereby the court below has rejected the said application as filed by the appellants for grant of bail, arising out of Crime No. 248/2018 under Sections 419, 420, 467, 468, 471, 324, 376D, 385, 406, 506, 342, 120B of I.P.C., read with Section 67a of Information Technology Act, 2008 and Section 3(2)(V) of SC/ST Act, Police Station Bakshi Ka Talab, District Lucknow.
Brief facts of the case are that on 22.04.2018, FIR was lodged by victim aged about 27 years alleging in it that she has a degree of M.A., B.ed. In October, 2011 she received a call on her cell phone from the numbers as mentioned in the FIR and when she inquired about the caller, it was co-accused Amit Singh @ Mohd. Ajaz. She has alleged that the caller was pressing to have friendship with him for which initially she refused but later on she accepted the same. The co-accused Amit Singh @ Mohd. Ajaz assured her for providing job and in turn he demanded Rs. 5 Lacs. She has further stated that she after some time, gave Rs. 50,000/- to the co-accused Amit Singh @ Mohd. Ajaz on the assurance that remaining would be given to him when she would get the job. According to the complaint, in June 2013, co-accused Amit Singh @ Mohd. Ajaz had called her along with all the documents and offered her some cold drink but immediately after consuming cold drink, she was literally unconscious and co-accused Amit Singh took her in a room where he committed sexual intercourse with her. When she regained her conscious, on the basis of licence lying in the said room, she came to know that Amit Singh is in fact Mohd. Ajaz. She states that when she asked the co-accused as to why he cheated her, co-accused threatened her by saying that he has her nude photographs and if she will not act according to his wishes, those nude photographs would be made opon. She further states that thereafter the co-accused send xerox copy of her documents to accused Arshad. She further states that her sexual exploitation continued till December 2014 and during this period she was demanding her documents from co-accused, which was not given to her later on she received certain calls from outside the country from which she came to know that co-accused is having connections abroad with certain uncalled for people. She further states that ultimately her nude photographs were shown by the co-accused Ankit Singh in social media. She further states that she has been subjected to exploitation. Based on this FIR, offence under Sections 419, 420, 467, 468, 471, 324, 376D, 385, 406, 506, 342, 120B of I.P.C., read with Section 67a of Information Technology Act, 2008 and Section 3(2)(V) of SC/ST has been registered against the main accused Amit Singh @ Mohd. Ajaz, Arshad and Javed and two other.
Counsel for the appellants submits:
(i) that there is inordinate delay of about six and half years in lodging the FIR and the said delay has not been explained by the prosecution.
(ii) that a very unusual and improbable story has been put forth by the prosecution.
(iii) that allegations are against Amit Singh @ Mohd. Ajaz and there is hardly anything against the present accused persons.
(iv) that in 161 Cr.P.C. statement, initially the victim has stated about the presence of the appellants but in later part of her statement, she has stated that accused persons were present on the date when she was performing marriage with main accused Amit Singh @ Mohd. Ajaz. She further states that present appellants have nothing to do with the commission of offence and they have not done anything with her. Even in 164 Cr.P.C. statement, prosecutrix has stated nothing against the appellants and her allegations are similar to that of her 161 Cr.P.C. statement. Later on supplementary 161 Cr.P.C. statement of the victim has been recorded in which she states about the presence of the accused persons and has further stated that accused Sagir has borne certain expenses.
(v) that even if the entire allegations are taken as it is no offence whatsoever has been made out against the appellants. The victim and the main accused Amit Singh @ Mohd. Ajaz have performed marriage. They filed writ petition before this Court seeking shelter and before this Court, it was informed that no case has been registered against the victim and Amit Singh @ Mohd. Ajaz and the order was passed on 11.08.2017 disposing of the writ petition.
(vi) that the appellants are in jail since 04.03.2019 and the trial is likely to take some time for its final disposal and, therefore, the appellants be released on bail.
(vii) that the provisions of the SC/ST Act do not attract against the appellants, as it is not the case of the prosecution that because she belongs to a particular caste, she was subjected to offence by the appellant.
On the other hand, State counsel opposes.
Considering the totality of the case, in particular the sequence of events and the evidence collected by the prosecution, without further commenting on merit, I am inclined to release the appellants on bail.
Accordingly, the appeals are allowed and the impugned order is set aside.
Let the appellants Sagir Jamali, Mohd.Arshad @ Guddu and Javed be released on bail in the aforesaid case crime number on furnishing personal bond in the sum of Rs.50,000/- (Fifty Thousand) each and two 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 appellants shall file an undertaking to the effect that they 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.
(ii) The appellants shall remain present before the trial court on each date fixed, either personally or through their counsel. In case of their absence, without sufficient cause, the trial court may proceed against them under section 229-A I.P.C.
(iii) In case, the appellants misuse the liberty of bail during trial and in order to secure their presence, proclamation under section 82 Cr.P.C. may be issued and if appellants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them, in accordance with law, under section 174-A I.P.C.
(iv) The appellants 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 appellants 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 them in accordance with law.
(v) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the appellants.
However, it is made clear that any wilful violation of above conditions by the appellants, shall have serious repercussion on their bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 26.7.2019 SK