Court No. - 52

Case :- CRIMINAL APPEAL No. - 4493 of 2017

Appellant :- Rajiv Kumar

Respondent :- State Of U.P.

Counsel for Appellant :- Ajay Kumar,Rajive Ratn Singh

Counsel for Respondent :- G.A.,Suneel Kumar

Hon'ble Rajul Bhargava,J.

Heard Sri Atul Pandey, learned counsel for appellant, learned A.G.A. for

the State-Respondent and perused the paper book.

This Criminal Appeal under Section 14-A(2) Scheduled Castes &

Scheduled Tribes (Prevention of Atrocities) Act has been filed questioning

the correctness of the order 11.7.2017 passed by Additional Session Judge,

Court no. 1, Pilibhit in Bail Application no. 773 of 2017 (Rajeev Kumar

vs. State of U.P.) in Case Crime no. 134 of 2017, u/s 363, 366, 376 IPC

and 3(2)(5)Ka SC/ST Act and 3/4 POCSO Act, P.S. Gajraula, District

Pilibhit, whereby his prayer for bail has been rejected.

It is contended by counsel for the appellant that the prosecutrix from the

medical report and otherwise is aged about 17 years. He has referred to the

statement of the prosecutrix recorded u/s 164 Cr.P.C. whose certified copy

has been annexed as annexure-2 to the affidavit in which she has

categorically stated that she has gone with the applicant voluntarily of her

own will, she has stayed with the applicant in Ghaziabad and stayed there

as husband and wife. He has further submitted that she used to love the

applicant for the past two years. Learned counsel states that prima facie

there is no evidence of any enticement by the applicant to make out

offence u/s 363, 366 IPC. Lastly it is contended that from the statement of

the prosecutrix it is more than clear that she was a consenting party and

the applicant is in jail since 26.4.2017.

Per contra learned AGA has vehemently opposed the prayer for bail and

supported the impugned order. However he could not point out anything

material on the contrary.

Considering the facts and circumstances of the case and keeping in view

the fact that the trial of the case is not likely to be concluded in near future,

the appeal has substance and it is, accordingly, allowed. Impugned order

dated 11.7.2017 is, hereby, set aside.

Let appellant, Rajiv Kumar, be released on bail in aforesaid Case Crime

on his furnishing a personal bond and two reliable sureties of the like

amount to the satisfaction of the court concerned with the 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, if 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 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.

(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 default of this condition is deliberate or without sufficient cause,

then it shall be open for the trial court to treat such default as abuse of

liberty of his bail and proceed against him in accordance with law.

Order Date :- 21.5.2018

Dhirendra/