HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. – 67
Case :- CRIMINAL APPEAL No. – 3822 of 2019
Appellant :- Amresh
Respondent :- State of U.P. and Another
Counsel for Appellant :- Shri Prakash Dwivedi,Ashwini Kumar Awasthi,S.A
Counsel for Respondent :- G.A.,Bijai Nath Yadav,Prem Prakash Yadav,Satya Prakash Yadav
Hon’ble Rahul Chaturvedi,J.
Heard Sri Manish Tiwari, Senior Counsel, assisted by Shri Prakash Dwivedi, learned counsel for the appellant, Sri Prem Prakash Yadav, learned counsel for the complainant as well as learned A.G.A for the State and perused the record.
This criminal appeal under Section 14 A (2) of Scheduled Castes SectionScheduled Tribes (Prevention of Atrocities) Act, 2015 (in short “S.C./SectionS.T. Act”) has been filed for setting-aside the bail rejection order dated 09.05.2019 passed by Special Judge, SC/SectionST Act, Mirzapur, in Bail Application No. 494 of 2019 (Amresh Vs. State of U.P), arising out of case crime no. 352 of 2018 under Sections 376D IPC and Section 3 (2) 5 SC/SectionST Act, Police Station- Lalganj, District- Mirzapur.
Submission is that the FIR was got registered by the victim herself, under the aforesaid sections on 10.12.2018, against appellant Amresh Mishra and co-accused Mithilesh Mishra with the allegation that on 09.12.2018 in the evening at about 6:00 p.m., when she was returning to her home, accused persons had interrupted her and thereafter misbehaved her by touching her private organs indecently despite of her strongest resistance.
The medico legal report demolishes the prosecution story as there was no forcible penetration is visible. Moreover there is no plausible justification, as to how and under what circumstances the case travelled from Sectionsections 354 IPC to 376D SectionIPC. There is a visible shift in prosecution story, clearly casts serious doubts about prosecution story.
Learned counsel for the appellant has submitted that in her medical examination, the doctor has clearly indicated that there is no clinical penetration to seen resulting sexual assault upon her. Her statement under Sectionsection 164 Cr.P.C. which was recorded on 15.01.2019, in which she has levelled allegation of misbehaviour and gang rape upon all without any justification. In her statement recorded under Sectionsection 161 Cr.P.C. she has stated that she is married lady and unfortunately there is sore relationship with her husband. The appellant is languishing in jail since 27.09.2016.
Learned A.G.A as well as learned counsel for the complainant opposed the prayer for bail and could not dispute the aforementioned facts.
The submission made by learned counsel for the appellant, prima facie, is 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 and without expressing any opinion on merits of the case, I am of the view that the applicant has made out a case for bail.
Let the appellant- Amresh, 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 APPLICANT 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 SectionIPC.
(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 SectionIPC.
(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 willful 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 09.05.2019 passed by Special Judge, SC/SectionST Act, Mirzapur, is hereby set aside.
Order Date :- 19.11.2019