Counter affidavit filed today is taken on record.
Heard learned counsel for the appellant, learned counsel for the Respondent No. 2, learned A.G.A. for the State and perused the material available on record.
This appeal has been preferred under Section 14 (A) (2) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, against the impugned order dated 20.6.2019 passed by learned IInd Additional Sessions Judge/Special Judge, SC/ST Act, Lakhimpur Kheri in Second Bail Application No. 165 of 2019 (Sahbaj Ahmad @ Tipu Vs. State of U.P.), arising out of Case Crime No. 142 of 2019, under Section 306 I.P.C and Section 3(2)5 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, Police Station Mailani, District Kheri. The Presiding Officer has rejected the bail application of the appellant vide impugned order dated 20.6.2019.
Counsel for the appellant has argued that there are no averments in the entire case so as to attract the implication of appellant under Section 306 I.P.C. He has drawn my attention towards the F.I.R. as well as the statement of Sri Kishori, a bare perusal of which prima facie does not implicate the appellant under Section 306 I.P.C.
Counsel for the victim, Respondent No. 2, has argued that as per the confessional statement, he had stated that the appellant had threatened the victim that if she does not engage in physical relation with the appellant, he would tell her husband about the earlier relationship.
The said statement cannot be relied upon at this stage. The appellant is in custody since 25.4.2019 and has no criminal antecedents.
Considering the over all submissions made at the bar, without expressing any opinion on the merits of the case, this Court is of the view that the appellant is entitled to be enlarged on bail.
Let appellant- Sahbaj Ahmad @ Tipu be released on bail in the aforesaid case crime number on his furnishing a personal bond of Rs.50,000/- and two sureties each in the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-
(i) The appellant shall not tamper with the evidence of witnesses and shall not commit any offence.
(ii) The appellant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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 of the Indian Penal Code.
(iv) In case, the appellant misuses the liberty of bail during trial 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.
(v) 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 absence of the applicant 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.
Appeal is accordingly allowed.
Order Date :- 27.9.2019 SR