Court No. - 67
Case :- CRIMINAL APPEAL No. - 5608 of 2019 Appellant :- Sahabudeen Respondent :- State Of U.P. And Anr.
Counsel for Appellant :- Ravindra Prakash Srivastava,Aqueeq Ahmad,Meraj Ahmad Khan Counsel for Respondent :- G.A.,Ganesh Kumar,Satya Prakash Singh
Hon'ble Rahul Chaturvedi,J.
Heard Sri Meraj Ahmad, learned counsel for the appellant, Sri Satya Prakash Singh, learned counsel for the opposite party no.2 learned A.G.A for the State and perused the record.
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 Criminal Misc. Bail Application No. 722 of 2019 (Sahabudeen vs. State of U.P.) rejection order dated 31.07.2019 passed by the Special Judge (S.C./S.T.) Act Basti in Case Crime No.0118 of 2019 under Section 376, 504, IPC and 3 (2) (V) S.C.and S.T. Act, 1989 (Amended 2015) Police Station-Munderwa, District- Basti.
As per F.I.R. which has been lodged by opposite party No.2 after three month on 01.07.2019 in respect of the incident, which took place on 01.07.2019 alleging that she is living with her Mausi and when she is alone in home, on 04.03.2019 at about 8.00 pm. in night applicant entered in the house and made forcefully illegal sexual relation but due to terror she did not made complaint, when she aware that she is pregnant about 3 month then she lodged the F.I.R.
The instant F.I.R. was registered by victim herself after inordinate delay of 4 months i.e. 21.07.2019 for the incident is said to have been taken place on 04.03.2019. The case was registered under Section 376, 504 and 506 IPC and 3 (2) (V) S.C./S.T. Act Munderwa, District Basti against the sole named accused Sahabudeen. Story narrated in F.I.R. that while she was staying all alone after the demise of her mausi, the appellant Sahabudeen who resides in the neighbourhood has developed intimacy and started visiting her place quite often. On a fateful day i.e. 04.03.2019 at about 8.00 evening forcefully after extending the threat to her life has established corporeal relationship with her and on account of threat of her life and her reputation, she did not disclose this fact. After about 15 days from the date of lodging the F.I.R. she got her medical examination done and then she came to know she has pregnant by three months. After this she has raised the castle of the prosecution story on this premises.
Learned counsel for the appellant has drawn the attention of the Court to (Annexure No.2) which is Marriage certificate issued by Special Marriage Officer/S.D.M. (F & R)) Siddharth Nagar dated 02.08.2015/ 19.11.2015 under Section 13/16 of the Special Marriage Act whereby both were got married and residing as husband and wife. It has further pointed out by the learned counsel for the appellant that there was a some matrimonial discord between husband and wife and in the office of S.P. Basti, they have been sorted out their difference and dispute with the parents of the appellant on 23.09.2018. In this proceedings too she was addressed as Anita w/o Sahabudeen. Learned counsel for the appellant has further submitted that the victim is legally wedded wife of the appellant since 2015. So far as the prosecution story mentioned above, it is an imaginary as she has concealed material fact from the Court. The applicant is languishing in jail since 25.07.2019 having no criminal history and the trial is not conclude in near future. It has further been submitted that if he enlarged on bail, he will not misuse the liberty of bail.
Learned A.G.A as well as learned counsel for the opposite party No.2 opposed the prayer for bail and submitted that the Marriage Certificate Annexure No.2 is a false certificate but unable to show anything contrary to the Mediation report Annexue no.6, whereby she herself stated that she has now no grudge with the parents of the appellant and now they are residing as a married couple. The 164 Cr.P.C. statement is too concocted one whereby she has purposely concealed the material fact that she is married wife of the appellant.
Totality of the circumstances, the Court has satisfied that the story propounded by victim is concocted one. The submission made by learned counsel for the appellant, prima facie, is quite appealing and convincing for the purpose of bail only.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, period of incarceration undergone by him and without expressing any opinion on merit of the case, I am of the view that the appellant has made out a fit case for bail.
Let the appellant- Sahabudeen, 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 THEIR 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.
Since victim has misused her Caste as S.C. and concealed the material fact from the Court for which the appellant, who is also husband of the victim, is languishing in jail unnecessarily since 25.07.2019, learned Special Judge S.C./S.T. Act Basti is directed to take suitable action against the informant/victim in prper Section of IPC within a period of two months.
Accordingly, the appeal succeeds and the same stands allowed. Impugned order dated 31.07.2019 passed by learned Special Judge (S.C./S.T.) Act, Bastii, is hereby set aside.
Order Date :- 17.12.2019 Pr/-