Court No. - 71
Case :- CRIMINAL APPEAL No. - 5539 of 2019 Appellant :- Sanjay Singh @ Kanha Respondent :- State Of U.P. And Another Counsel for Appellant :- Satendra Singh Counsel for Respondent :- G.A.
Hon'ble Rajiv Gupta,J.
Learned AGA has filed counter affidavit on behalf of the State, which is taken on record.
Heard learned counsel for the appellant, learned A.G.A. for the State and perused the record.
This criminal appeal under Section 14-A(2) of Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been filed challenging the order dated 2.5.2019 passed by Special Judge, SC/ST Act/Addl. Sessions Judge, Court No. 2, Firozabad in Bail Application No. 1047 of 2019 (Sanjay Singh @ Kanha Vs. State of U.P.) arising out of Case Crime No. 66 of 2019, under Sections 363, 366 IPC, Section 3(2)(5) of SC/ST Act, P.S. Pachokhara, District- Firozabad, seeking bail in the aforesaid sections.
In para- 3 of the counter affidavit filed by Circle Officer, Tundla, District- Firozabad, it has been stated that notice regarding filing of the present criminal appeal has been given to the complainant, copy of which has been annexed as Annexure No. CA-1 to the counter affidavit, however despite service of notice, no one has appeared on his behalf.
Learned counsel for the appellant has submitted that as per ossification test, the victim is aged about 17 years. Learned counsel for the appellant has next drawn the attention of the Court towards the statement of the victim recorded under Section 161 Cr.P.C. in which she has stated that on 11.4.2019 she reached Mathura railway station and made a phone call to the appellant, who was acquainted with her for the last 23 months and thereafter she had gone alongwith the appellant to Gujrat and thereafter the victim is said to have returned back to Mathura and appellant has not committed any indecent act, however in the statement recorded under Section 164 Cr.P.C., the victim has stated that on 11.4.2019 the appellant had reached her house and had taken her on the pretext that his brother is calling him and had taken her to Tundla and thereafter to Mathura and from there went to Gujrat and after two days the appellant brought him to Mathura and from there to Agra and at Atmadpur, she was arrested by the police. Learned counsel for the appellant has next submitted that there is sharp contradiction in the statement of the victim recorded under Sections 161 and 164 Cr.P.C.. The victim has travelled with appellant from one place to another, however did not raise any alarm. Looking to the facts and circumstances of the case, prima facie a case for bail is made out. Lastly, it is submitted that the appellant is in jail since 16.4.2019 and has no criminal history to his credit and there is no chance of appellant fleeing away from judicial process or tampering the witnesses.
Per contra, learned A.G.A. has opposed the prayer for bail, but could not dispute the aforesaid facts and the fact that appellant is in jail since 16.4.2019 and has no criminal history to his credit.
Upon hearing learned counsel for the parties, perusal of record and considering the complicity of accused, severity of punishment as well as totality of facts and circumstances, the appeal has substance. Accordingly, the appeal is allowed.
The impugned order dated 2.5.2019 passed by Special Judge, SC/ST Act/Addl. Sessions Judge, Court No. 2, Firozabad, is set- aside and the bail application of appellant stands allowed.
Let the appellant- Sanjay Singh @ Kanha be released on bail in Case Crime No. 66 of 2019, under Sections 363, 366 IPC, Section 3(2)(5) of SC/ST Act, P.S. Pachokhara, District- Firozabad, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of court concerned, subject to following conditions:-
(i) The appellant will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that he is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.
(ii) The appellant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The appellant will not indulge in any unlawful activities.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the appellant to prison.
Order Date :- 27.9.2019 KU