Heard Sri Sanjay Singh Chauhan, learned counsel for the appellant and Dr Gyan Singh, learned counsel for the State. None for respondent no.2 though served.
Appeal is formally admitted for hearing.
With the consent of learned counsel for the parties, the appeal is heard finally.
Challenge in the present appeal is to the impugned order dated 7.5.2019 passed by the Incharge Second Additional Sessions Judge/Special Judge (SC/ST Act), District Lakhimpur Kheri in Bail Application No.104 of 2019, whereby the Special Court has rejected the bail application filed by the appellant under Section 439 of Cr PC, arising out of Crime No.69/2019 registered under Sections 363, 366, 376 of IPC; Section 3/4 of POCSO Act and Section 3 (2) (v) of SC/ST Act, Police Station Neemgaon, District Lakhimpur Kheri.
As per prosecution case, on 22.2.2019, FIR was lodged by Prem Pasi, father of the prosecutrix, mentioning therein that on 20.2.2019, the appellant took his minor daughter after alluring her. Based on this FIR, offence under Sections 363 and 366 of IPC was registered against the appellant.
Counsel for the appellant submits:
(i) that there is delay in lodging the FIR and the same has not been explained by the prosecution;
(ii)that the prosecutrix was recovered on 23.2.2019 and on the same day, her diary statement was recorded;
(iii) that in Section 161 Cr PC statement, the prosecutrix has stated that since last one year, she knows the appellant and on her own, on 20.2.2019, she accompanied the appellant, when both of them were about to board for Haridwar, they were detained by the villagers and after seeing them, the appellant fled away from the spot. She has further stated that no force whatsoever has been applied by the appellant. It has been argued by counsel for the appellant that from the statement of the prosecutrix, it is apparent that she was a consenting party;
(iv) that while recording Section 164 Cr PC statement, the prosecutrix has given altogether a new story where she has stated that she was forcibly taken by the appellant behind the temple; was subjected to physical relation; then was taken to Achaniya on foot and thereafter, they boarded in a Bus for Haridwar and from Haridwar, they returned to Lakhimpur and from Lakhimpur Bus Stand they were detained by the police. She has further stated that her mouth was all the time gagged by the appellant. Learned counsel submits that a very improbable story has been put forth by the prosecutrix;
(v) that as per medical report of the prosecutrix, she was between 16 to 18 years of age. Learned counsel submits that considering this aspect of the case, it can be said that she was a major lady;
(vi) that the provisions of SC/ST Act do not attract against the appellant as it is not the case of the prosecution that because the prosecutrix belongs to a particular caste, she was subjected to offence by the appellant; and
(vii) that the appellant is in jail since 28.2.2019 and there is no substantial progress in the trial which may take sometime for its final disposal, therefore, the appellant be released on bail.
On the other hand, learned State Counsel opposes the submissions made on behalf of the appellant. However, he does not dispute the age of the prosecutrix.
Considering the totality of the facts and circumstances of the case, in particular the nature of allegations levelled against the appellant, without further commenting on merit, I am inclined to allow the appeal. Accordingly, the instant appeal is allowed and the impugned order is set aside.
Let appellant Shera @ Ashish Kumar 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 applicant 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 within a period of one year after the release of the appellant.
However, it is made clear that any willful 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 :- 26.7.2019 RKK/-