Court No. - 53
Case :- CRIMINAL APPEAL No. - 6779 of 2017 Appellant :- Vijay Soni Respondent :- State Of U.P. & Another Counsel for Appellant :- Rajesh Singh Counsel for Respondent :- G.A.
Hon'ble Umesh Chandra Srivastava,J.
Supplementary affidavit filed today by learned counsel for the appellant is taken on record.
Heard Shri Rajesh Singh, learned counsel for the appellant, learned AGA for the State and perused the record.
This appeal has been filed against order dated 05.10.2017 of learned Additional Sessions Judge, Court No. 2, Kushi Nagar at Padrauna passed in IInd Bail Application No. 1676 of 2017 ( Vijay Soni vs. State of U.P.), arising out of Case Crime No. 460 of 2017, under sections 363, 366, 376 I.P.C., section 3/4 POCSO Act and section 3(2)5 of SC/ST Act, P.S. Tarya Sujan, District Kushi Nagar, by which bail plea of appellant has been rejected.
Learned counsel for appellant has submitted that order of the learned court below rejecting bail application of applicant-appellant is bad in law, as it has failed to consider that F.I.R. of incident has been lodged with delay of 5 days without any plausible explanation. He has further submitted that learned court below has also failed to consider that victim has not supported the prosecution in her statement under section 161 Cr.P.C., as she has stated that she being in affair with appellant had gone with him out of her own sweet will. He has further submitted that learned court below has also failed to consider that in subsequent statement also, victim has said nothing against appellant, she has only stated that she had an affair with appellant and gone with him at her own. He has further submitted that learned court below has also failed to consider that appellant who is in jail since more than seven months has no other criminal history and there is also no possibility of his either fleeing away from the judicial process or tampering with the witnesses.
Learned AGA while opposing the submissions of learned counsel for the appellant has submitted that learned court below has committed no illegality in rejecting bail application of the appellant as victim has supported prosecution in her statement under section 164 Cr.P.C.
Having heard the submission of learned counsel of both sides, considering the facts and circumstances of the case specially the age as well as statements of victim and without commenting on merits of the case, I find it to be a case of bail.
In the result, appeal is allowed. Order dated 05.10.2017 passed by learned Additional Sessions Judge, Court No. 2, Kushi Nagar at Padrauna is set aside.
Let appellant-applicant Vijay Soni be released on bail in IInd Bail Application No. 1676 of 2017 ( Vijay Soni vs. State of U.P.), arising out of Case Crime No. 460 of 2017, under sections 363, 366, 376 I.P.C., section 3/4 POCSO Act and section 3(2)5 of SC/ST Act, P.S. Tarya Sujan, District Kushi Nagar on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
(i) The applicant-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 applicant-appellant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant-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 applicant to prison.
Order Date :- 23.2.2018 Bhanu