Special Court allowed the appeal against the rejection of bail, set aside the impugned order, and granted bail with standard conditions.
Impugned order set aside; Appellant released on bail with personal bond and two sureties; Trial to conclude within one year.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 15
Case :- CRIMINAL APPEAL No. - 467 of 2023
Appellant :- Surya Bhan @ Suraj Bhan Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home, Lko. And Another Counsel for Appellant :- Sanjay Kumar Singh,Anas Ahmad Counsel for Respondent :- G.A.
Hon'ble Ajai Kumar Srivastava-I,J.
1. Heard Sri Sanjay Kumar Singh, learned counsel for the appellant assisted by Sri Anas Ahmad, Advocate, Sri Alok Saran, learned A.G.A. for the State and perused the entire record.
2. This Criminal Appeal under Section 14-A (2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 15.12.2022 passed by the learned Special Judge (S.C./S.T. Act), Raebareli in Bail Application No.3814 of 2022 moved by the appellant in Case Crime No.512 of 2022, under Sections 376-D, 506 I.P.C. and Sections 3(2)(5) S.C./S.T. Act, Police Station Kheron, District Rae Bareli, whereby the bail application of the appellant has been rejected.
3. Vide order dated notice was directed to be issued to respondent No.2, which has been served upon her/him as per report dated 14.03.2023 furnished by the learned Chief Judicial Magistrate, Rae Bareli. However, no one has put in appearance on behalf of respondent No.2.
4. Learned counsel for the appellant submitted that the appellant is innocent who has been falsely implicated in this case because of his acquaintance with one of the co-accused Bauva, in order to exert pressure and wreck vengeance. His further submission
is that the victim is major, who is herself complainant. He further submits that conjoint reading of contents of first information report, statement under Sections 161 and 164 Cr.P.C. would reveal that there is a systematic improvement in the prosecution case with a view to falsely implicate the present appellant.
5. His further submission is that in a case lodged by mother of co-accused Bauva, the present appellant happens to be a witness of recovery memo. Drawing attention of this Court towards recovery memo, he submits that in that case, the real brother of the victim was accused, therefore, the present appellant has been implicated in this false case.
6. His further submission is that the appellant is aged about 46 years as well as he is peace loving resident of village. He has also submitted that the medical report of the victim, if read in totality alongwith the final opinion which is available at page no.37 of the appeal, it would reveal that there was no sign of use of force, however, possibility of sexual violence has not been ruled out. He thus submits that having been a case of gang rape, there aught to have been physical injuries also and in absence of such injuries, it falsified the prosecution case.
7. Learned counsel for the appellant has also drawn attention of this Court towards the statement of the victim/first informant, available at Page No.25, which reveals that initially the act of committing rape upon the victim, has been committed by Ram Pher, therefore, the case of the present appellant is distinguishable from the case of Ram Pher, whose role specifically came to be defined or mentioned in the statement in the statement of victim under Section 164 Cr.P.C.
8. Learned counsel for the appellant has also submitted that accused/ appellant is languishing in jail since 09.11.2022, who
has no previous criminal history.
9. His further submission is that in case, the appellant is enlarged on bail, he shall not misuse the liberty of bail and he shall also fully cooperate with the trial court in getting the trial concluded expeditiously. He has further submitted that there is no possibility of the appellant to intimidate or pressurize the witnesses or any other persons acquainted with the facts of the present case.
10. For the aforesaid reasons, learned counsel for the appellant submits that the instant criminal appeal deserves to be allowed. The impugned order dated 15.12.2022 passed by the learned Special Judge (S.C./S.T. Act), Raebareli in Bail Application No.3814 of 2022 moved by the appellant in Case Crime No.512 of 2022, under Sections 376-D, 506 I.P.C. and Sections 3(2)(5) S.C./S.T. Act, Police Station Kheron, District Rae Bareli deserves to be set aside and consequently, the accused/ appellant deserves to be enlarged on bail during pendency of the trial.
11. Per contra, learned A.G.A. has vehemently opposed the prayer and submits that the present appellant is named in the first information report, the appellant is stated to have committed rape upon the victim, therefore, the appeal deserves to be dismissed. However, he has been unable to dispute the other factual submissions advanced by learned counsel for the appellant.
12. Having heard the learned counsel for the appellant, learned A.G.A. for the State and upon perusal of record, it transpires that. The first information report came to be lodged against the three named persons including the present appellant. Initially in her statement recorded under Section 161 Cr.P.C., the victim
who is major, has stated that rape upon her was committed by Ram Pher and his associates. The appellant was not specifically named. In her statement recorded under Section 164 Cr.P.C., for the first time, the victim stated to have been raped by the present appellant also. The accused/ appellant is languishing in jail since 09.11.2022 who has no previous criminal history.
13. Considering the aforesaid overall facts and circumstance of the case, without expressing any opinion on merit, this Court of the view that the learned court below has failed to appreciate the material available on record. The order passed by the court below is liable to be set aside.
14. Accordingly, the appeal is allowed . Consequently, the impugned judgment and order dated 15.12.2022 passed by the learned Special Judge (S.C./S.T. Act), Raebareli in Bail Application No.3814 of 2022 moved by the appellant in Case Crime No.512 of 2022, under Sections 376-D, 506 I.P.C. and Sections 3(2)(5) S.C./S.T. Act, Police Station Kheron, District Rae Bareli, is set aside.
15. Let the appellant, Surya Bhan @ Suraj Bhan be released on bail in the aforesaid case crime number with the following conditions:-
(i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned.
(ii) The appellant shall appear and strictly comply following terms of bond executed under section 437 sub section 3 of Chapter- 33 of Cr.P.C.:-
(a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter.
(b) The appellant shall not commit an offence similar to the
offence of which he is accused, or suspected, of the commission of which he is suspected, and
(c) The appellant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
(iii) The appellant shall cooperate with investigation /trial.
(iv) 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.
(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(vi) In case, the appellant misuses the liberty of bail during trial, 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.
(vii) The appellant shall remain present, 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 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.
(viii) The trial court is also directed to expedite the trial of the aforesaid case by following the provisions of Section 309 Cr.P.C. and conclude the same within one year, strictly without granting any unnecessary adjournments to the parties, in case there is no other legal impediment.
Order Date :- 3.5.2023
Saurabh
Digitally signed by :- SAURABH VERMA High Court of Judicature at Allahabad, Lucknow Bench
2 issues framed by the court
Whether the bail application rejection by the Special Judge deserves to be set aside on the grounds of failure to appreciate material on record.
Whether the appellant deserves to be enlarged on bail during the pendency of the trial in a case involving rape and caste atrocity.
10 provisions across 3 enactments
Surya Bhan @ Suraj Bhan
State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home, Lko.
State Of U.P. Thru. Another
Ajai Kumar Srivastava
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
