Allahabad High Court
Manoj Kumar Yadav vs The State Of U.P. & 4 Ors. on 8 July, 2019
Bench: Pritinker Diwaker
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 15
Case :- CRIMINAL APPEAL No. - 1068 of 2019
Appellant :- Manoj Kumar Yadav
Respondent :- The State Of U.P. & 4 Ors.
Counsel for Appellant :- Anand Kumar Srivastava,Vivek Kumar Srivastava
Counsel for Respondent :- G.A.
Hon'ble Pritinker Diwaker,J.
Heard Sri Anand Kumar Srivastava, learned counsel for the appellant and Sri Sanjay Dwivedi, learned counsel for the State. None for others though served.
Appeal is formally admitted for hearing.
With the consent of learned counsel for the parties, the appeal is heard finally.
Challenge in the present appeal is to the impugned order dated 14.5.2019 passed by the Additional Sessions Judge/Special Judge, POCSO Act, Court No.1, Balrampur in Bail Application No.71 of 2019, whereby the Special Court has rejected the bail application filed by the appellant under Section 439 of Cr PC, arising out of Crime No.274 of 2018 under Sections 376, 504, 506 of IPC and Section 3/4 of the Protection of Children From Sexual Offences Act & Section 3 (I) (Dha) of SC/ST Act, Police Station Kotwali Dehat, District Balrampur.
Brief facts of the instant case are that on 22.11.2018, FIR was lodged by Sri Devi, mother of another victim, alleging in it that on 15.11.2018 when her daughter along with her two friends were going towards their field, three accused persons namely, Kamlesh, Manoj (appellant) and Lallu reached there, caught hold their hands and dragged them in the sugarcane field. It is alleged that thereafter, accused persons have teased the three victims and as all the three victims raised alarm, accused persons fled away from the spot. Later, while improving, in 161 and 164 of Cr PC statements, all the three victims have stated that they were subjected to rape by the accused persons.
Counsel for the appellant submits that:
(i) there is seven days' delay in lodging the FIR and the said delay has not been explained by the prosecution;
(ii) in the initial FIR lodged by the complainant Sri Devi, there is no allegation of committing rape by the accused persons and that is why, initially offence under Section 354 of IPC was registered;
(iii) while improving, all the three victims have alleged that they were subjected to rape by the accused persons;
(iv) medical report of the prosecutrix does not support the prosecution case and no external or internal injury has been found;
(v) the provisions of the Special Act, i.e. SC/ST Act would not attract in the present case because it is not a case of the prosecution that the alleged offence was committed with an intention that the prosecutrix belongs to a particular caste;
(vi) the provisions of SC/ST Act have been added against the appellant to make the offence more graver and to ensure that the victims should get sufficient amount from the Government;
(vii) as per School document, the prosecutrix was about 18 years of age and as such, she was in a position to exercise her discretion. There is no conclusive evidence in this regard and on the basis of material collected by the prosecution, it cannot be said, with certainty, that the prosecutrix was minor; and
(viii) the appellant is in jail since 1.5.2019 and the trial may take sometime for its final disposal and, therefore, the appellant be released on bail;
On the other hand, learned State Counsel opposes.
Considering the totality of the facts and circumstances of the case, in particular the nature of allegations levelled against the appellant and further considering the surrounding circumstances, 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 appellant Manoj Kumar Yadav 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 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 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 within a period of one year after the release of the appellant.
However, it is made clear that any willful 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
RKK/-
