The present revision has been filed against the order dated 8.5.2018 passed by the Special Judge, Children Court/POCSO Act/Additional Sessions Judge, Court No.1, Lakhimpur Kheri in Bail Application No.98 of 2018 in Case Crime No.378 of 2017, under Section 377 IPC and Section 5-M/6 POCSO Act, Police Station Haidarabad, District Lakhimpur Kheri.
Against the impugned order, statutory remedy of appeal is provided under sub-section (5) of Section 101 of the Juvenile Justice (Care and Protection of Children) Act, 2015. However, at this stage, it would not be proper to dismiss this revision on technical ground and, this Court in exercise of its powers under sub-section (5) of Section 401 Cr.P.C. treats this revision as appeal and proceed to decide the same.
The victim in the case is the niece of the accused-appellant. From reading the statement of the victim recorded under Section 164 Cr.P.C., it is evident that her statement is not her own, but it is tutored statement. A five year old child could not have uttered the words and phrases, which are present in the statement recorded under Section 164 Cr.P.C. The accused-appellant is in jail since 16.12.2017.
Considering the fact that the victim is in relation of the accused-appellant, and there is likelihood of his false implication as the father of the victim is no more and, considering the statement of the victim recorded under Section 164 Cr.P.C., it would be appropriate to enlarge the accused-appellant on bail.
Let appellant Suraj be released on bail in the above case crime number on his furnishing a personal bond and two sureties each to the satisfaction of 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 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 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 during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the appellant 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 absence of the applicant 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 in accordance with law.
(v) The appellant and his family members should not try to influence or tamper with the evidence or threaten the family members of the prosecutrix in any manner.
In view of the order of release of the accused- appellant on bail, the appeal is allowed and the order dated 8.5.2018 passed by the Special Judge, Children Court/POCSO Act/Additional Sessions Judge, Court No.1, Lakhimpur Kheri in Bail Application No.98 of 2018, is hereby set aside.
Order Date :- 17.12.2019 Rao/-