Court No. - 52
Case :- CRIMINAL APPEAL No. - 4069 of 2018 Appellant :- Shera Respondent :- State Of U.P. And Another Counsel for Appellant :- Anand Kumar Singh Counsel for Respondent :- G.A.
Hon'ble Rajul Bhargava,J.
Heard learned counsel for appellant, learned A.G.A. 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 questioning the correctness of the order 6.12.2017 passed by In-charge Session Judge, Kaushambi in Case Crime no. 0631 of 2016, u/s 376D, 506 IPC and section 3(2)(v)/3(2) (Va)Ka of SC/ST Act, P.S. Kokhraj, District Kaushambi whereby his prayer for bail has been rejected.
It is contended by counsel for the appellant that the alleged incident of rape was allegedly committed by the applicant and co-accused on 17.10.2016 at 6.30 pm, in this behalf neither any F.I.R. nor any application was made to higher authority either by the prosecutrix or her husband. The F.I.R. was registered by moving an application u/s 156(3) Cr.P.C. The prosecution version of gang rape is not supported by any medical evidence. Lastly it is submitted that similarly placed co-accused Gulab Patel has been granted bail by this Court in Criminal Appeal no. 3628 of 2017.
Per contra learned AGA has vehemently opposed the prayer for bail and supported the impugned order. However he could not dispute that similarly placed co-accused has been granted bail.
Considering the facts and circumstances of the case and keeping in view the fact that the trial of the case is not likely to be concluded in near future, the appeal has substance and it is, accordingly, allowed. Impugned order dated 6.12.2017 is, hereby, set aside.
Let appellant, Shera be released on bail in aforesaid Case Crime 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 :- 28.8.2018 Dhirendra/