Sri Alok Kumar Srivastava, learned counsel for the appellant and Ms. Shikha Sinha learned AGA for the State. None for the private respondent though served.
The appeal is formally admitted for hearing.
With the consent of parties, the case is heard finally.
Challenge in the present appeal is to the impugned order dated 03.05.2019 passed by the Additional Sessions Judge/Special Judge POCSO Act, Court No. 11, Hardoi in Bail Application No. 07 of 2019, whereby the court below has rejected the application as filed by the appellant for grant of bail, arising out of Crime No. 55/2018, under Sections 363, 366, 376 of I.P.C. read with Section 3/4 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 & 3(2)(V), 3(2)(Va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Police Station Madhoganj, District Hardoi.
As per prosecution case, on 28.02.2018 at 15.58 p.m., FIR was lodged by Smt. Shiv Kumari, mother of the prosecutrix alleging in it that in the previous year, her daughter aged about 15 years eloped with the appellant and had returned about one and half months back. She stated that the report was lodged in the police station and the said case is pending. It has further been alleged that on 23.02.2018, the appellant again allured her daughter and she is not traceable. Based on this FIR, offence under Sections 363, 366 of I.P.C. and Section 3(2)(V), 3(2)(Va) of SC/ST Act, 3/4 of POCSO Act was registered against the appellant and one Virendra. However, charge sheet has been filed only against the appellant.
Counsel for the appellant submits:
(i) that there is inordinate delay in lodging the FIR and the said delay has not been explained by the prosecution.
(ii) that the prosecutrix is a married lady aged about 20 years.
(iii) that in 161 and 164 Cr.P.C. statement, the prosecutrix has disclosed her age to that of 20 years.
(iv) that the prosecutrix has categorically stated that she was having affair with the appellant, she accompanied him of her own and that they have already performed marriage.
(v) that in 164 Cr.P.C. statement, the prosecutrix has gone to the extent by saying that she wants to live with the appellant and that the appellant has not done anything.
(v) that the provisions of the SC/ST Act do not attract against the appellant, 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.
(vi) that the appellant is in jail since 29.04.2018 and the trial may take some time for its final disposal, therefore, the appellant be released on bail.
On the other hand State counsel opposes.
Considering the totality of the case, in particular, the nature of allegation leveled against the appellant and the evidence collected by the prosecution, without further commenting on merit, I am inclined to release the appellant on bail.
Accordingly, the appeal is allowed and the impugned order is set aside.
Let the appellant Sanjay Aarakh be released on bail in the aforesaid case crime number on furnishing a personal bond in the sum of Rs.50,000/- (Fifty Thousand) 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 appellant shall file an undertaking to the effect that he/she 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 appellant shall remain present before the trial court on each date fixed, either personally or through his/her counsel. In case of his/her absence, without sufficient cause, the trial court may proceed against him/her under section 229-A I.P.C.
(iii) In case, the appellant misuses the liberty of bail during trial and in order to secure his/her 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/her, in accordance with law, under section 174-A I.P.C.
(iv) 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/her 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 appellant.
However, it is made clear that any wilful violation of above conditions by the appellant, shall have serious repercussion on his/her 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 :- 31.7.2019 SK