Court No. - 74
Case :- CRIMINAL APPEAL No. - 3026 of 2021 Appellant :- Salim Respondent :- State of U.P. and Another Counsel for Appellant :- Jagdish Prasad Mishra Counsel for Respondent :- G.A.,Rajesh Kumar Tiwari
Hon'ble Subhash Chand,J.
Heard learned counsel for the appellant, learned Additional Government Advocate 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 challenging the order dated 16.07.2021 passed by the Special Judge, Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, Muzaffarnagar arising out of Case Crime No.185 of 2021, under sections 366, 376 IPC and 3(1)(xii), 3(2) (v) SC/ST Act, P.S. Bhopa, District Muzaffarnagar, seeking bail in the aforesaid sections.
The facts giving rise to the present appeal may be summarized as under:
Learned counsel for the appellant in support of his prayer for bail submits that the impugned order of the court's below is illegal and perverse. The court's below has not appreciated the evidence available on record in proper perspective. It is further submitted that the appellant has been falsely implicated in this case. The victim is major and she was consenting party. The statement under Sections 161 and 164 Cr.P.C. of the victim are self contradictory. It is also submitted that after filing of the charge-sheet, an affidavit was filed on behalf of victim and her mother and father also.
Learned counsel for the informant has submitted that the affidavit, which has been filed on behalf of victim, is annexed as Annexure No.8 to the affidavit filed in support of bail application, is correct and in the said affidavit, the victim has stated that she was neither forcibly abducted nor raped.
Learned AGA opposed the contention made by learned counsel for the appellant and contended that the statements of victim and informant under Section 161 Cr.P.C. and statement of victim under Section 164 Cr.P.C. support the F.I.R. version and the affidavit, which was filed on behalf of the victim, is not made part of the case diary.
Considering the facts and circumstances of the case and the arguments advanced on behalf of both the sides and keeping in view the fact that the averments made in the affidavit filed on behalf of the victim are correct, the appeal is allowed and the order dated 16.07.2021 is hereby set aside.
Let appellant, Salim, be released on bail in Case Crime No.185 of 2021, under sections 366, 376 IPC and 3(1)(xii), 3(2)(v) SC/ST Act, P.S. Bhopa, District Muzaffarnagar 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 :- 24.8.2021 AK Pandey