Allahabad High Court
Subhash Yadav vs State Of U.P. And Another on 18 May, 2022
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL APPEAL No. - 1788 of 2022
Appellant :- Subhash Yadav
Respondent :- State of U.P. and Another
Counsel for Appellant :- Vipin Kumar Yadav,Amit Kumar,Swati Agrawal Srivastava
Counsel for Respondent :- G.A.
Hon'ble Samit Gopal,J.
Matter has been taken up in the revised list.
Heard Ms. Swati Agrawal Srivastava, learned counsel for the appellant and Sri Sanjay Kumar Singh, learned counsel for the State and perused the material on record.
The present bail application has been filed on behalf of the appellant for release on bail in Criminal Appeal under Section 14-A (2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 which has been preferred by the appellant-Subhash Yadav against the judgment and order dated 12.1.2022 passed by Special Judge (S.C./S.T. Act), Kannauj in S.T. No.962 of 2021, arising out of Case Crime No.204 of 2021, under Section 504 IPC and Section 3(2)V of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Police Station Indergarh, District Kannauj, whereby the bail application of the appellant has been rejected.
Vide order dated 24.02.2022, notice was issued to opposite party no.2 through CJM, Kannauj. As per office report dated 5.5.2022, the report of the CJM, Kannauj has been received stating therein that notice has been served upon the opposite party no.2.
A perusal of the said report dated 29.03.2022 of the C.J.M., Kannauj, it is apparent that notice has been served on the opposite party no.2. The report of the police station concern dated 29.03.2022 is also enclosed stating that notice has been served on the opposite party no.2.
No one appears on behalf of the opposite party no.2 despite service of notice upon opposite party no.2 even when the matter has been taken up in the revised list.
Learned counsel for the appellant argued that the appellant was previously granted bail in the present case under Sections 364, 323, 452 IPC vide order dated 31.01.2022 in Criminal Misc. Bail Application No.46183 of 2021 "Subhash Kumar Vs. State of U.P.", copy of the said order is annexed as Annexure No.2 to the affidavit filed in support of appeal. It is further argued that subsequently the police has submitted charge sheet against the appellant adding Section 504 IPC and Section 3(2)(v) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 which has been added on the basis of supplementary statement of the victim Siyaram @ Shri Ram Kori which was recorded on 1.10.2021. Learned counsel for the appellant has placed the said statement which is annexed as S.A.1 to the supplementary affidavit dated 16.5.2022. The victim in his first statement recorded under Section 161 Cr.P.C., copy of which is annexed as annexure no.5 and more particularly page 54 of the paper book although has reiterated the same as has been stated by him in the FIR but has not uttered a single word regarding offence being committed knowing that he is a member of SC/ST community. Subsequently in his second statement under Section 161 Cr.P.C. he introduced the said fact which is new fact in the present case and then the said Section has been added in the present case and charge sheet has been submitted, as such the present appeal deserves to be allowed and the appellant be released on bail. The appellant is in jail since 13.08.2021.
Per contra, learned counsel for the State opposed the prayer for bail and argued that in the second statement recorded under Section 161 Cr.P.C. of the victim, there is an allegation which makes out a case under the said Act, as such the appeal deserves to be dismissed.
After having heard the learned counsel for the parties and perusing the records, it is evident that the version of the accused knowing that the victim belong to SC/ST community is not stated in the FIR and even in the first statement of the victim recorded under Section 161 Cr.P.C. In other Sections, the appellant was granted bail by coordinate Bench of this Court. Subsequently in his second statement under Section 161 Cr.P.C., he has stated for the first time of the said fact. The charge sheet has been submitted in the matter by adding Sections in which present appeal has been filed.
Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the appellant may be enlarged on bail.
Let the appellant-Subhash Yadav be released on bail in the aforesaid case crime number on 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 appellant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The appellant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) The appellant shall file an undertaking to the effect that he 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.
(iv) The appellant will not misuse the liberty of bail in any manner whatsoever. 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., 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, in accordance with law, under section 174-A I.P.C.
(v) 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 in accordance with law and the trial court may proceed against him under Section 229-A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the appellant.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the appellant to prison.
Accordingly, the appeal succeeds and the same stands allowed.
The impugned order dated 12.1.2022 passed by Special Judge (S.C./S.T. Act), Kannauj is hereby set-aside.
(Samit Gopal, J.)
Order Date :- 18.5.2022
Gaurav
