Allahabad High Court
Saleem vs State Of U.P. & 2 Others on 9 July, 2019
Bench: Pritinker Diwaker
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 15
Case :- CRIMINAL APPEAL No. - 2056 of 2017
Appellant :- Saleem
Respondent :- State Of U.P. & 2 Others
Counsel for Appellant :- Srees Kumar Srivastava,Mrs.Suniti Sachan,Rajiv Mishra,Soniya Mishra
Counsel for Respondent :- Govt. Advocate
Hon'ble Pritinker Diwaker,J.
Ms. Suneeti Sachan, learned counsel for the appellant and Sri Jyoti Prakash, learned AGA for the State.
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 29.7.2017 passed by the Special Judge POCSO Act/Additional District and Sessions Judge, Court No.10, Unnao in Bail Application No.1441of 2017, whereby the court below has rejected the said application as filed by the appellant for grant of bail, arising out of Crime No. 305/2016 under Sections 342, 376D, 306, 506, 120B IPC, Section 3/4 of POCSO Act and Section 3(2)V of SC/ST (P.A.) Act, Police Station Safipur, District Unnao.
As per prosecution case, on 4.10.2016, FIR was lodged by Smt. Radha Pasi, aunt of the prosecutrix alleging in it that on 1.10.2016, when the prosecutrix, aged about 14 years had gone to the shop of main accused Sharif, she was called inside the house by co-accused Shabira, Shakira and Hajira, sisters of the main accused and they informed the prosecutrix that Sharif has performed marriage with her. It is further alleged that when the prosecutrix has refused to accept the said marriage, the main accused Sharif called appellant Saleem and Mohammad and his sisters and in their presence, the prosecutrix was subjected to rape. It is further alleged that despite information given to the police, prosecutrix was not allowed to come out from the clutches of the accused persons and next day, the accused persons have committed murder of Kranti Kumar, father of the prosecutrix.
Counsel for the appellant submits:
(i) that very improbable story has been put forth by the prosecution where it is alleged that in presence of all three three sisters of accused Sharif, she was subjected to rape by the accused persons.
(ii) that there is no legally admissible evidence showing the involvement of accused appellant for committing the murder of Kranti Kumar.
(iii) that as per ossification test, age of the prosecutrix was about 19 years.
(iv) Lastly it has been argued that except the appellant and Sharif (main accused), all other accused persons have been granted bail by the competent court and the appellant is in jail since 19.10.2016. 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 prima facie involvement of the appellant has been proved by the prosecution and considering the gravity of the offence, he is not entitled for bail. He, however, does not dispute that as per ossification test, age of the prosecutrix was 19 years and except the appellant and Sharif (main accused), all other persons have been granted bail.
Considering the facts and circumstances of the case and further considering the detention period of the accused appellant, without further commenting on merit, I am inclined to allow the appeal. Accordingly, the instant appeal is allowed and the impugned order is set aside.
Let the appellant Saleem be released on bail in the aforesaid 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 :- 9.7.2019
nethra/RK
