Allahabad High Court
Kinchu @ Rajkumar vs State Of U.P.And Anr. on 7 May, 2021
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 26
Case :- CRIMINAL APPEAL No. - 856 of 2020
Appellant :- Kinchu @ Rajkumar
Respondent :- State Of U.P.And Anr.
Counsel for Appellant :- Farooq Ayoob,Neelam Singh
Counsel for Respondent :- G.A.,Upendra Prakash Pathak
Hon'ble Alok Mathur,J.
1. Heard learned counsel for the appellant, learned AGA for the State and perused the record.
2. This criminal appeal under Section 14-A(2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred by the appellant against the judgment and order dated 10.08.2020 passed by learned Special Judge (SC/ST Act), Barabanki in Bail Application No. 1088 of 2020 (Kinchu @ Rajkumar Vs. State of U.P.) arising out of Case Crime No. 276 of 2018, under Sections 364, 302, 201, 394, 412 of IPC & 3 (2)(V) of SC/ST Act, Police Station Ramsanehighat, District Barabanki whereby his bail application has been rejected.
3. As per First Information Report, complainant's son Ravi was running a Battery Rickshaw. On 10.08.2018 the driver of S.D.M., namely Rajender had given filthy abuses and threatened that by the evening, he would be kidnapped. On the same day at about 06:00 pm son of complainant was found missing and his mobile phone was found switched off. However, on 12.08.2018 at about 08:00 am Rickshaw of the deceased was found near a Nala and the battery of the said Rickshaw was found missing and whereabouts of the deceased was not known. The FIR was lodged on 20.08.2018 at about 20:10 hours under Section 364, 504 and 506 of IPC.
4. It has been argued by learned counsel for the appellant that appellant is innocent and he has been falsely implicated in the present case. It has been further submitted that allegation made in First Information Report are totally false and frivolous and do not effect the correct factual aspect of the case. It has been further contended that in the FIR although Rajender was suspected who have committed the crime. It has been further submitted that the Investigation Officer has dropped the name of Rajender while filing the chargesheet and has falsely implicated the present appellant. It has been further submitted that nothing has been recovered from the possession of present appellant nor any evidence of phone calls. The appellant has not committed any offence as alleged by the prosecution version even appellant has not been named in FIR. It has also been submitted that co-accused namely Niyamat Ali and Uday Narayan Srivastava @ Pintoo has already been granted bail by Co-ordinate Bench of this Court in Criminal Appeal Nos. 39 of 2019 and 702 of 2019 respectively, copies of which are already annexed to this appeal. Learned counsel for the appellant has further submitted that the appellant is in jail since 20.08.2018 having no criminal history and that there is no chance of appellant fleeing away from the judicial process or tampering with the witnesses, as such, he may be released on bail.
5. Per contra, learned AGA has vehemently opposed the prayer for bail and argued that appellant has abused and threatened the complainant threatening that he would be kidnapped by evening and on the same day, the complainant's son was found missing. It was submitted that there is no illegality or perversity in the impugned order.
6. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the impugned order carefully.
7. Having regard to the facts and circumstances of the case and keeping in view the nature of the offence, evidence and complicity of the accused, the Court is of the opinion that the appellant has made out a case for bail. The court below erred in rejecting the bail application. The impugned order suffers from infirmity and illegality and the same is liable to be set-aside and the criminal appeal is liable to be allowed.
8. Accordingly, this criminal appeal is allowed and the impugned order dated 10.08.2020 rejecting the bail application of the appellant is set-aside.
9. Let appellant Kinchu @ Rajkumar be released on bail in aforesaid case on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the Magistrate/Court concerned, subject to following conditions :-
(i) The appellant 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.
(ii) The appellant 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.
(iii) In case, the appellant 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 appellant 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.
(iv) The appellant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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 in accordance with law.
10. In case of breach of any of the above conditions, the Court below shall be at liberty to cancel the bail and proceed against the appellant in accordance with law.
11. The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by him alongwith a self attested identity proof of the said person (s) (preferably Aadhar Card) mentioning the mobile number (s) to which the said Aadhar Card is linked before the concerned Court/Authority/Official.
12. The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 7.5.2021
Mohit
