Appeal against rejection of bail in rape and SC/ST case. Court allowed the appeal, quashed the lower order, and granted bail with conditions, noting a similarly placed co-accused had already been released.
Impugned order dated 30.07.2019 rejected; appellant released on bail with personal bond and two sureties subject to conditions.
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Court No. - 71
Case :- CRIMINAL APPEAL No. - 5706 of 2019
Appellant :- Kamal Alias Nirdesh Respondent :- State Of U.P. And Anr. Counsel for Appellant :- Rakesh Kumar Rathore,Sanjeev Kumar Counsel for Respondent :- G.A.
Hon'ble Rajiv Gupta, J.
Learned AGA has filed counter affidavit on behalf of the State today in Court, which is taken on record.
Shri Mukul Chandra Dwivedi, Advocate has filed his vakalatnama on behalf of the Opposite Party No. 2 today in Court, which is also taken on record.
Heard learned counsel for the appellant, learned AGA for the State as well as Shri Mukul Chandra Dwivedi, learned counsel for the Opposite Party No.2 and perused the record.
This criminal appeal has been filed by the appellant against the order dated 30.07.2019 passed by learned Additional Sessions Judge/Special Judge (SC/ST Act), Mainpuri in Bail Application No.126 of 2019, arising out of Case Crime No.64 of 2019, under Sections 366, 376D IPC and Section 3(2)(5) of SC/ST Act, P.S. Ghiror, District Mainpuri seeking his release on bail.
Learned counsel for the appellant has submitted that the appellant is wholly innocent and has been falsely implicated in the present case due to ulterior motive.
Learned counsel for the appellant has next submitted that in the FIR itself, the age of the victim has been mentioned as 20 years and the girl was in consensual relationship with co-accused Brijesh Kumar, with whom, she had gone and thereafter, some dispute arose between the coaccused Brijesh Kumar and the victim with regard to solemnization of marriage.
Learned counsel for the appellant has next submitted that similarly placed co-accused Brijesh Kumar has already been granted bail by this Court in Criminal Misc. Bail Application No. 33877 of 2019 vide order dated 22.08.2019.
Learned counsel for the appellant has next submitted that the case of the appellant stands on the same footing as that of the co-accused Brijesh Kumar, who has already been granted bail by this Court.
Learned counsel for the appellant has next submitted that there is no allegation against the appellant that the present offence has been committed only on account of the fact that the victim belongs to Scheduled Caste.
Learned counsel for the appellant has next submitted that the appellant is in jail since 10.06.2019 and he has no criminal history to his credit, as such, he may be released on bail. In case, he is released on bail, he will not misuse the liberty of bail and will co-operate in the trial. There is no chance of the appellant fleeing away from the judicial process or tampering with the witnesses.
Per contra, learned AGA as well as learned counsel for the Opposite Party No.2 has opposed the prayer for bail but could not dispute the aforesaid facts and the fact that similarly placed co-accused Brijesh Kumar has already granted bail by this Court and that the appellant is in jail since 10.06.2019 and he has no criminal history to his credit.
I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the impugned order carefully.
Having regard to the facts and circumstances of the case and keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, the Court is of the opinion that the appellant has made out a case for bail. The Court below erred in rejecting the bail application. The impugned order suffers from infirmity and illegality and the same is liable to be set-aside and the appeal is liable to be allowed. Accordingly, this criminal appeal is allowed and the impugned order dated 30.07.2019 rejecting the bail application of the appellant is quashed.
Let the appellant Kamal @ Nirdesh involved in Case Crime No. 64 of 2019, under Sections 366, 376D IPC and Section 3(2)(5) of SC/ST Act, P.S. Ghiror, District Mainpuri be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.
In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.
Order Date :- 30.10.2019 Nadim
2 issues framed by the court
Whether bail should be granted to the appellant in a case involving rape and SC/ST offences given that a similarly placed co-accused has already been granted bail.
Whether the impugned order rejecting the bail application is liable to be set aside.
Kamal Alias Nirdesh
State Of U.P.
Rajiv Gupta
As recorded by the court registry
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