Appeal against bail rejection by this Court quashing the High Court order and granting bail under SC/ST Act conditions due to alleged age discrepancy and lack of impugned order proof.
Impugned order dated 12.2.2021 rejected in the appeal against bail.
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Court No. - 67
Case :- CRIMINAL APPEAL No. - 1100 of 2021
Appellant :- Sonu Respondent :- State of U.P. and Another Counsel for Appellant :- Devesh Kumar Shukla,Dharmesh Kumar Shukla Counsel for Respondent :- G.A.
Hon'ble Rahul Chaturvedi,J.
Office report dated 2.8.2021 shows that notice has been duly served upon opposite party no.2 but it seems that he has not engaged any counsel nor has chosen to file counter affidavit so far. Under circumstances, taking the help and aid of learned A.G.A., this Court proposed to decide the appeal on merits.
Counter affidavit on behalf of State has already been filed and its rejoinder affidavit has also been filed on behalf of appellant.
Heard Shri Devesh Kumar Shukla, learned counsel for the appellant learned A.G.A for the State and perused the record.
This criminal appeal under Section 14 A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short "S.C./S.T. Act") has been filed for setting-aside the bail rejection order dated 12.2.2021 passed by learned Special Judge, SC/ST Act, Aligarh in Bail Application No.786 of 2021 (Sonu vs. State of U.P) in Case Crime No.148 of 2020, under Sections 363, 366, 328 I.P.C. and Section 3(2)(v) of SC/ST Act, Police Station-Barla, District-Aligarh.
It is submitted by learned counsel for the appellant that the allegation made in the F.I.R. s that the informant's niece Miss 'X', aged about 16 years, was enticed away by the appellant on 24.11.2020 around 08.00 in the morning. While going away, she has taken away Rs.6000/- and her own clothing. Despite the best efforts, her whereabouts could not be located, hence, the F.I.R. Learned counsel for the appellant has drawn attention of the Court to the High School Certificate of the victim girl in which her date of birth is mentioned as 10.5.2001. On a calculation, the age of the victim girl on the date of incident comes to be 19 years, 6 months and 6 days, as such, she was a grown up major girl at the time of incident. When the police caught hold of the girl and recorded her statement u/s 161 Cr.P.C., she has given a vivid story implicating four more persons in this episode narrating that they have administered certain intoxicants to her and she became unconscious. She
went to Haridwar and from where she was carried back to Aligarh. She has spent almost seven days with the applicants and during this period she has visited to various places. When the statement of the victim girl u/s 164 Cr.P.C. was recorded, she has denied that she was ever subjected to any sexual assault upon her. Since the girl was administered certain intoxication to make sexual assault upon her, the police has added Section 328 I.P.C. in the array of sections. It is contended by learned counsel for the appellant that the girl who is major herself has gone and joined the company of the appellant after carrying Rs.6000/and her belongings along with her and remained with the appellant for 6-7 good days in Haridwar, which all suggests that the victim girl was in consensual relationship with the appellant. The appellant is languishing in jail since 20.01.2021.
Learned A.G.A opposed the prayer for bail but could not dispute the above facts.
The submissions made by learned counsel for the appellant, prima facie , appear quite appealing and convincing for the purpose of bail only.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, the period of detention already undergone by the appellant and also without expressing any opinion on merits of the case, I am of the view that the appellant has made out a case for bail.
Let the appellant- Sonu , be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable 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 WOULD FULLY COOPERATE IN THE CONCLUSION OF TRIAL WITHIN ONE YEAR AND ANY TEMPERING OR WILLING TACTICS ON THE PART OF THE APPELLANT TO DELAY THE TRIAL WOULD WARRANT THE AUTOMATIC CANCELLATION OF BAIL.
(ii) THE APPELLANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE 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.
(iii) 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 IPC.
(iv) IN CASE, THE APPELLANT MISUSE THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS 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, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(v) 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 HIM IN ACCORDANCE WITH LAW.
However, it is made clear that any wilful violation of above conditions by the appellant, shall have serious repercussion on his bail so granted by this court.
Accordingly, the appeal succeeds and the same stands ALLOWED. Impugned order dated 12.2.2021 passed by learned Special Judge, SC/ST Act, Aligarh, is hereby set aside.
Order Date :- 7.9.2021 M. Kumar
3 issues framed by the court
Whether the appellant is entitled to bail given the victim's age discrepancy and alleged intoxication.
Whether the impugned bail rejection order can be set aside.
What conditions should be imposed for the grant of bail.
5 provisions across 3 enactments
Sonu
State of U.P.
Another
Rahul Chaturvedi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
Rahul Chaturvedi
Parties & counsel
