Allahabad High Court
Shakeel vs State Of U.P. & 2 Ors. on 13 August, 2021
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 27
Case :- CRIMINAL APPEAL No. - 718 of 2020
Appellant :- Shakeel
Respondent :- State Of U.P. & 2 Ors.
Counsel for Appellant :- J.N. Singh,Firoj Ahmad Khan
Counsel for Respondent :- G.A.
Hon'ble Karunesh Singh Pawar,J.
Heard learned counsel for the appellant, learned Additional Government Advocate for the State and perused the record.
This criminal appeal has been filed under Section 14-A(2) of Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989 to set aside order dated 23.6.2020 passed in Bail No.704/12A/2020, arising out of case crime No.168 of 2020 under sections 376 I.P.C., 3/4 POCSO Act and Sections 3(2)(V) of Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989, P.S. Nanpara, district Bahraich.
Learned A.G.A. has raised a preliminary objection regarding maintainability of the criminal appeal in view of judgment dated 11.2.2019 of this Court at Allahabad, passed in Crl. Misc. Case No.33075 of 2018 Rinku vesus State of U.P., and submits that regular bail application shall lie in this case and not criminal appeal under Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989.
The appellant' counsel submits that the appeal may be converted into regular bail application.
Considering the fact that the appeal is pending since 13.7.2020 and more than one year has passed and no such objection was raised by the learned A.G.A. earlier and also the stamp reporting section has also not made any defect in the appeal and considering the innocuous prayer of the appellant's counsel, the appeal is treated as regular bail application under section 439 CrPC.
Learned counsel for the applicant submits that the prosecutrix is major as per her own statement under section 161 CrP. As per radiological examination of the prosecutrix also, her age is ascertained as 17 to 18 years. The fact that the prosecutrix is a consenting party is evident from the photograph filed with the rejoinder affidavit.
It is submitted that when the prosecutrix was caught by her family members in the compromising position, then under the pressure of the family members, the allegation of rape has been levelled. The prosecutrix in her statement under section 161 CrPC has stated that she is illiterate whereas in the statement under section 164 CrPC, she has said that she has passed Class-V. While giving statement under section 164 CrPC, she has introduced one Wali whose name she has not taken while giving statement under section 161 CrPC and also in the F.I.R. Medical report does not corroborate the prosecution story. The testimony of the prosecutrix does not inspire confidence. Hence some corroborative material is needed in this case which is absent. The applicant is in jail since 20.3.2020, with no criminal history.
It is further submitted that there is no possibility of the appellant of fleeing away after being released on bail or tampering with the witnesses. In case the appellant is enlarged on bail, he shall not misuse the liberty of bail.
Learned A.G.A. opposed the prayer for bail but could not dispute the aforesaid facts as argued by the learned counsel for the appellant/applicant.
Considering the facts and circumstances of the case, including the fact that the appellant is in jail since 20.3.2020, without commenting upon merit of the case, I am of the view that the learned court below has failed to appreciate the material available on record.
In view of above, the order of rejection of bail passed by the court below is liable to be and is hereby set aside.
Accordingly, the appeal is allowed.
Let the applicant be released on bail in Case Crime No.168 of 2020 (supra) on his furnishing a personal bond 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 applicant will not tamper with the evidence during the trial.
(ii) The applicant will not pressurize/ intimidate the prosecution witness.
(iii) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
(iv) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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.
(v) The applicant 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 of the Indian Penal Code.
(vi) In case the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant 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 of the Indian Penal Code.
Order Date :- 13.8.2021
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