Taj v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

Court No. - 15 Case :- CRIMINAL APPEAL No. - 1317 of 2023 Appellant :- Taj Respondent :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another Counsel for Appellant :- Wasim Ahmad Counsel for Respondent :- G.A. Hon'ble Shamim Ahmed,J.

¶1The case is taken up in the revised call.

¶2Heard Sri Wasim Ahmad, the learned counsel for the appellant and Sri Awadesh Kumar Pathak, the learned A.G.A. for the State-opposite party No. 1 and perused the entire record.

¶3Learned A.G.A. has already filed the counter affidavit. In reply thereto learned counsel for the appellant has filed the rejoinder affidavit. The same are available on record.

¶4As per the office report dated 10.07.2023 notice has already been served upon the opposite party No. 2 personally but till date neither any counsel has appeared on behalf of opposite party No. 2 nor counter affidavit has been filed on her behalf. It appears that opposite party No. 2 is not interested to file any counter affidavit.

¶5In the above circumstances, as the matter pertains to bail this Court has no option but to proceed for final arguments to decide the present appeal.

¶6The present criminal appeal under Section 14-A (2) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 24.03.2023 passed by the court of Special Judge, S.C./S.T. Act, Sitapur in Bail Application No. 287 of 2023, arising out of Case Crime No. 0003 of 2023, under Sections 363, 366 I.P.C. and Section 3 (2) (v) S.C./S.T. Act, Police Station Khairabad, District Sitapur, whereby bail application of the appellant has been rejected.

¶7Learned counsel for the appellant submits that the appellant is innocent and has been falsely implicated in the present case due to enmity and village party bandi.

¶8Learned counsel for the appellant further submits that initially the F.I.R. was lodged under Sections 363 and 366 I.P.C. and as per the version of the F.I.R., the appellant has taken the daughter of the complainant, who is aged about 16 years along with some cash.

¶9Learned counsel for the appellant further submits that the statement of the prosecutrix was recorded under Section 161 Cr.P.C. in which she has submitted that the father of the prosecutrix was interested to solemnize her marriage to some other person and she was not ready, as she does not like that boy. She further submitted that she used to talk to the present appellant and when she told about her marriage to him, then the appellant took her away with him and she further submitted that appellant has nod done any wrong act with her.

¶10Learned counsel for the appellant further submits that as per statement of the prosecutrix recorded under Section 161 Cr.P.C. the parties appears to be consenting parties, as the age of the prosecutrix is 16 years and taking benefit of two years, either side, the prosecutrix appears to be major.

¶11Learned counsel for the appellant further submits that the statement of the prosecutrix was recorded under Section 164 Cr.P.C. in which she has stated that the appellant has not made any physical relation forcefully. She also admitted that the appellant wants to get marry with the prosecutrix but the family members of the appellant is not ready, even though no allegation of physical relation was made against the appellant. She also refused for her internal and external examination. The report of the doctor is filed as Annexure No.4 to the affidavit filed in support of the bail application.

¶12Learned counsel for the appellant further submits that the prosecutrix belongs to lower caste and the appellant is of upper caste and only to gain financial aid from the State Exchequer, the present F.I.R. has been lodged.

¶13Learned counsel for the appellant further submits that accused/appellant is languishing in jail since 02.01.2023, who has no previous criminal history, and in case the appellant is enlarged on bail, he shall not misuse the liberty of bail and he shall also fully cooperate with the trial. He has further submitted that there is no possibility of the appellant to intimidate or pressurize the witnesses or any other persons acquainted with the facts of the present case.

¶14For the aforesaid reasons, learned counsel for the appellant submits that the instant criminal appeal deserves to be allowed and the order dated 24.03.2023 passed by the court of Special Judge, S.C./S.T. Act, Sitapur in Bail Application No. 287 of 2023, arising out of Case Crime No. 0003 of 2023, under Sections 363, 366 I.P.C. and Section 3 (2) (v) S.C./S.T. Act, Police Station Khairabad, District Sitapur deserves to be set aside and consequently, the accused/appellant deserves to be enlarged on bail during pendency of the trial.

¶15Several other submissions in order to demonstrate the falsity of the allegations made against the appellant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the appellant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that the accused is not having any criminal history and he is in jail since 02.01.2023 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

¶16Per contra, learned A.G.A. has vehemently opposed the prayer by submitting that there is active participation of accused/appellant in the crime. Therefore, the accused/ appellant is not entitled to be enlarged on bail and the instant criminal appeal deserves to be dismissed. However, he has been unable to dispute the other factual submissions advanced by the learned counsel for the accused/appellant.

¶17After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, unlikelihood of early conclusion of trial and also in absence of any convincing material to indicate the possibility of tampering with the evidence and considering the fact that there appears force in the argument that as per statement of the prosecutrix recorded under Section 161 Cr.P.C. the parties appears to be consenting parties, as the age of the prosecutrix is 16 years and taking benefit of two years, either side, the prosecutrix appears to be major; the prosecutrix in her statement recorded under Section 164 Cr.P.C. has stated that the appellant has not made any physical relation forcefully. She also admitted that the appellant wants to get marry with the prosecutrix but the family members of the appellant is not ready; there appears force in the argument of learned counsel for the appellant that the prosecutrix belongs to lower caste and the appellant is of upper caste and only to gain financial aid from the State Exchequer, the present F.I.R. has been lodged and further considering the fact that appellant is in jail since 02.01.2023 and has now by done a substantial period of detention and further considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the case of Dataram Singh Vs. State of UP and another, reported in (2018) 3 SCC 22, this Court is of the view that the learned court below has failed to appreciate the material available on record, the impugned order passed by the trial court is liable to be set aside.

¶18Accordingly, the appeal is allowed. Consequently, the order dated 24.03.2023 passed by the court of Special Judge, S.C./S.T. Act, Sitapur in Bail Application No. 287 of 2023, arising out of Case Crime No. 0003 of 2023, under Sections 363, 366 I.P.C. and Section 3 (2) (v) S.C./S.T. Act, Police Station Khairabad, District Sitapur is hereby reversed and set aside.

¶19Let the appellant, Taj, be enlarged on bail in Case Crime No. 0003 of 2023, under Sections 363, 366 I.P.C. and Section 3 (2)

(v) S.C./S.T. Act, Police Station Khairabad, District Sitapur with the following conditions:-

(i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned.

(ii) The appellant shall appear and strictly comply following terms of bond executed under section 437 sub section 3 of Chapter-33 of Cr.P.C.:-

(a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter.

(b) The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) The appellant 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.

(iii) The appellant shall cooperate with investigation /trial.

(iv) 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.

(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(vi) In case, the appellant misuses the liberty of bail during trial, 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.

(vii) The appellant shall remain present, 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.

¶20It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the prayer for bail and must not be construed to have any reflection on the ultimate merit of the case.

¶21The trial court is also directed to expedite the trial of the aforesaid case, within a period of one year from today, by following the provisions of Section 309 Cr.P.C., strictly without granting any unnecessary adjournments to the parties, in case there is no other legal impediment. Order Date :- 11.10.2023 Arvind High Court of Judicature at Allahabad, Lucknow Bench