HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. – 67
Case :- CRIMINAL APPEAL No. – 4746 of 2019
Appellant :- Tun Tun Yadav
Respondent :- State of U.P. and Another
Counsel for Appellant :- Satya Priya Upadhyay,Chandra Shekhar Singh
Counsel for Respondent :- G.A.
Hon’ble Rahul Chaturvedi,J.
Rejoinder affidavit filed by learned counsel for the applicant today which is taken on record.
Heard Sri Satya Priya Upadhyay, learned counsel for the applicant, learned AGA and perused the record.
Order sheet shows that despite of the personal service no one has turned up to give reply on behalf of the opposite party no.2 and with the aid and help of I am proposing to decide the present appeal.
This criminal appeal under Section 14 A (2) of Scheduled Castes SectionScheduled Tribes (Prevention of Atrocities) Act, 1989 (in short “S.C./SectionS.T. Act”) has been filed for setting-aside the bail rejection order dated 02.05.2019 passed by Additional Sessions Judge, Court No.1/Special Judge, POCSO Act, Ballia in Bail Application No.777 of 2019, under Sections 376/Section511, Section354 IPC, Section 7/8 POCSO Act and Section 3(2)(Va) of SC/SectionST Act, Police Station-Narhi, District-Ballia.
Learned counsel for the applicant submitted that the present case is an out come of cross case in order to retaliation to the earlier NCR lodged by the applicant under Section 323 and Section504 IPC on 16.03.2019,, the mother of the victim has lodged the FIR referring to the same day of the incident under Section 354 IPC and Section 3(2)(Va) and Section 7/8 POCSO Act with regard to alleged act of misbehaviour with her minor daughter while she was going to attend the call of nature and in the statement under Section 164 Cr.P.C., the allegation of misbehaviour swelled considerably and run to attempt to rape. The allegation of attempt to rape is not supported by any medical evidence, now there is any abnormality is detected in the medical report. Though the age of the girl is 14 years but the allegation is limited to 354 SectionIPC only. There is no allegation of caste name by derogatory way. The applicant is languishing in jail since 16.03.2019 having no criminal antecedent and hence the appellant is entitled to be released on bail.
Learned AGA opposed the prayer for bail but could not dispute the aforesaid facts and the legal submissions as argued by the learned counsel for the applicant.
The submissions made by learned counsel for the applicant, prima facie, quite appealing and convincing for the purpose of bail only.
Taking into the totality of circumstances, false implication cannot be ruled out to the extent that after lodging the FIR the present criminal prosecution in retaliation to it. The present FIR came into existence and there is considerable shifting from misbehaving to attempt to rape without any justification and 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 fit case for bail.
Let the applicant Tun Tun Yadav, 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 APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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.
(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A SectionIPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A SectionIPC.
(iv) THE APPLICANT 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 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 THE HIM/HER IN ACCORDANCE WITH LAW.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Accordingly, the appeal succeeds and the same stands allowed. Impugned order dated 02.05.2019 passed by Additional Sessions Judge, Court No.1/Special Judge, POCSO Act, Ballia is hereby set aside.
Order Date :- 13.12.2019