Allahabad High Court
Babli Lodh @ Virendra Kumar vs State Of U.P. & 2 Others on 8 July, 2019
Bench: Pritinker Diwaker
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 15
Case :- CRIMINAL APPEAL No. - 1563 of 2018
Appellant :- Babli Lodh @ Virendra Kumar
Respondent :- State Of U.P. & 2 Others
Counsel for Appellant :- Dilip Kumar Pandey,Dhirendra Pratap Singh
Counsel for Respondent :- Govt. Advocate
Hon'ble Pritinker Diwaker,J.
Sri Dhirendra Pratap Singh, learned counsel for the appellant, Sri Diwakar Singh, learned AGA for the State. None for others though served.
The appeal is formally admitted for hearing.
With the consent of parties, appeal is heard finally.
Challenge in the present appeal is to the impugned order dated 25.8.2018 passed by Special Judge, POCSO Act/First Additional Sessions Judge, Court No.1, Raibarelli in Bail Application No.955 of 2018, whereby the court below has rejected the said application as filed by the appellant for grant of bail, arising out of Crime No. 383/2017 under Sections 452, 376, 504, 506 IPC & 7/8 of POCSO Act, & 3(2)(5) of SC & ST Act, P.S. Lalganj, District Raibarelli.
As per prosecution case, on 14.9.2017, FIR was lodged by Hansraj, father of the prosecutrix, alleging in it that on 17.8.2017 when her daughter was alone in her house, she was subjected to rape by the appellant. It is alleged that the appellant also abused the procecutrix in the name of her caste.
Counsel for the appellant submits:
(i) that there is inordinate delay of about one month in lodging the FIR.
(ii) that there is no legally admissible evidence showing the prosecutrix to be minor.
(iii) that initially the offence under Sections 452, 376, 504, 506 of IPC read with Section 7/8 of Protection of Children from Sexual Offences (POCSO) Act, 2012 along with Section 3(2)(5) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was registered but while filing the charge sheet, the said offence has been omitted.
(iv) that a very improbable story has been put forth by the prosecutrix.
(v) that from reading of 161 and 164 Cr.P.C. statements of the prosecutrix, it is apparent that she was a consenting party. In 164 Cr.P.C. statement, prosecutrix has alleged that while she was being subjected to the offence, her younger brother also reached there.
(vi) that medical report of the prosecutrix does not support the prosecution case.
(vii) that the appellant is in jail since 10.3.2018.
(viii) that there is no substantial progress in the trial and it may take some time for its conclusion.
On the other hand, opposing the appeal, it has been argued by the State counsel that bail application of the appellant has rightly been rejected. He, however, does not dispute that except for offence under Section 3(1)(r)(s), other offences of SC & ST Act have been deleted.
Considering the nature of allegation leveled against the appellant and other surrounding circumstances and further considering the detention period of the accused appellant, without further commenting on merit, I am inclined to release the appellant on bail. Accordingly, the instant appeal is allowed and the impugned order is set aside.
Let the appellant Babli Lodh @ Virendra Kumar be released on bail in the aforesaid case crime number on furnishing a personal bond in the sum of Rs.50,000/- (Fifty Thousand) and two 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 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 appellant 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 I.P.C.
(iii) In case, the appellant 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 appellant 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 I.P.C.
(iv) 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/her in accordance with law.
(v) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the appellant.
However, it is made clear that any wilful violation of above conditions by the appellant, 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.
Order Date :- 8.7.2019
RK
