HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. – 15
Case :- CRIMINAL APPEAL No. – 2371 of 2019
Appellant :- Abdul Jaheer @ Bhulai
Respondent :- State Of U.P. Anr.
Counsel for Appellant :- Manoj Kumar Misra
Counsel for Respondent :- Govt. Advocate
Hon’ble Anant Kumar,J.
Counter affidavit filed on behalf of State is taken on record.
As per office report, notice has been served upon Private Respondent No.2, but none has put in appearance when the case is taken up in the revised cause list.
Heard learned counsel for the appellant, learned A.G.A. for the State and perused the record.
By means of present criminal appeal, the appellant has prayed that this Hon’ble Court may graciously be pleased to allow the instant criminal appeal and set-aside the impugned order dated 22.10.2019 passed by Special Sessions Judge, SC/ST Act, Gonda in Application No.2036/2019, arising out of Case Crime No.509/2019, under Section 376-D, 354 I.P.C. Section 3(2)(5) SC/ST Act, Police Station – Kotwali Nagar, District – Gonda and order to release the applicant on bail during pendency of his trial.
Initially this F.I.R. was lodged under Section 354 I.P.C. It is stated that on 4.7.2019 at about 7 PM when the prosecutrix was returning from the house of one Patel Sahab, four persons met her in the way and tried to outrage her modesty and dragged her in a sugarcane field. She had recognized one of them, namely, Shailendra. When she raised alarm, after hearing commotion, the miscreants fled away. This F.I.R. was lodged on 5.7.2019 at about 16.22 hours. The statement of the prosecutrix under Section 161 Cr.P.C. was recorded, wherein, for the first time, she named the present applicant and stated that four persons had raped her and when she raised alarm her elder brother Jatashanker Sonker and some other persons reached on spot and she was taken to police station. In her statement recorded under Section 164 Cr.P.C. the prosecutrix has stated that the appellant was arrested on spot by the persons of the locality.
It is stated by learned counsel for the appellant that the prosecutrix has changed her version from stage to stage. Initially no allegation of rape was levelled. The allegation of rape was made in her statement recorded under Section 161 Cr.P.C. In her statement recorded under Section 164 Cr.P.C. she has stated that she had been taken to police station by her elder brother immediately after the incident, but it is evident from the record that the F.I.R. was lodged on the very next date of the incident i.e. 5.7.2019. In the medical report, no abnormality was found in spite of the fact that allegation of rape was made against four persons. Her further statement was recorded after a long gape, wherein she has named the present applicant and one other namely Mohd. Saiyad and allegation of rape was made against them but only to strengthen the case, she had levelled allegation of rape against four persons.
Learned A.G.A has, however, opposed the prayer for grant of bail but he has not disputed the above contention made by learned counsel for the accused-applicant.
In view of above, the order impugned passed by the court below is liable to be set aside.
Accordingly, the criminal appeal is allowed. Order dated 22.10.2019 passed by Special Sessions Judge, SC/ST Act, Gonda in Application No.2036/2019, arising out of Case Crime No.509/2019, under Section 376-D, 354 I.P.C. Section 3(2)(5) SC/ST Act, Police Station – Kotwali Nagar, District – Gonda, is set aside.
Let applicant/ appellant (Abdul Jaheer @ Bhulai) be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-
(i) The applicant/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 applicant/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 applicant/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 applicant 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 applicant/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.
Order Date :- 13.2.2020
S. Kumar
