Counter affidavit filed on behalf of the State, is taken on record.
Heard learned counsel for the appellant, learned AGA and perused the record.
The office report dated 15.07.2021 and 23.07.2021 shows that notice was duly served upon opposite party no. 2 but till date she neither engaged any counsel nor any counter affidavit filed by her. The learned counsel for the appellant submits that he does not want to file any rejoinder affidavit to the counter affidavit filed on behalf of the State and wants to argue the case.
By means of the appeal u/s 14 (A)(2) SC/ST Act, the appellant is challenging the order dated 04.09.2020 passed by Learned Special Judge/Other Judge (SC/ST) Act, Varanasi in Case Crime No. 0074 of 2020, u/s 323, 504, 506, 372, 373, 376, 342, 34 IPC, 1860 and section 3(1)(Da), 3(1)(Dha) of SC/ST (Prevention of Atrocities) Act 1989 and section 3, 4, 5, 6 & 9 of Immoral Traffic (Pretension) Act, 1956, P.S. Lalpur Pandeypur, District Varanasi.
It is contended by learned counsel for the appellant that the appellant has attacked the legality and veracity of the judgment and order dated 04.09.2020. The Court has perused the FIR and the rejection order passed by Learned Special Judge/Other Judge (SC/ST) Act, Varanasi and from the FIR it is clear that the appellant is named in the FIR and she was having an acquaintance with the co-accused Sunita @ Savita. Sunita was got married in the same village from which the appellant belongs and both of them are acquaintance with each other. Except this, there is no other role attributed to the appellant generalized the allegation and branding it as a gang. It is further contended that in the statement of the victim recorded u/s 164 Cr.P.C. she has not whispered a single word against the appellant or about her involvement. It is further contended that the prime accused Naveen Agarwal has already been admitted on bail by coordinate Bench of this Court in Criminal Appeal No. 2659 of 2020 vide order dated 22.10.2020 and the case of the present appellant stands on the better footing than the case of Naveen Agarwal.
Learned AGA has refuted the submission advanced by leaned counsel for the appellant and submitted that it seems that the applicant belongs to a gang but has unable to point out the specific role attributed to the appellant.
The submissions made by learned counsel for the appellant, prima facie, quite appealing and convincing for the purpose of bail only.
Keeping in view the totality of circumstances and moreover the injured himself has turned hostile and submissions of the learned counsel for the parties and without expressing any opinion on merits of the case, I am of the view that the appellant has made out a fit case for bail.
Let the appellant Smt. Reeta Alias Geeta Sonkar, be released on bail in the aforesaid case crime number on furnishing a personal bond 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 IPC.
(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 IPC.
(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 THE 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 APPLICANT.
Keeping in view that though the complainant belongs to the S.C. community and as per arguments of learned counsel for the complainant that the accused appellant would create all sorts of impediments in the smooth trial. Besides this, after the release the accused appellant who belong to a higher caste may extend threat and pressurize the witnesses.
All these complaints may be raised by the complainant before S.P. concerned who would examine objectively after having reports from his agencies at the earliest with regard to threat prospective of informant and his family members and use his own discretion in the matter, if it desirable, then during trial may provide security to complainant and his near family members.
With the observation the present stands allowed and the impugned order dated 04.09.2020 passed by Learned Special Judge/Other Judge (SC/ST) Act, Varanasi, is hereby quashed.
Order Date :- 18.8.2021 Nisha