High Court
Case Details
Court No. - 65 Case :- CRIMINAL APPEAL No. - 728 of 2022 Appellant :- Imran Respondent :- State of U.P. and Another Counsel for Appellant :- Kamlesh Kumar Dwivedi Counsel for Respondent :- G.A.,Dhirendra Bahadur Singh Hon'ble Rahul Chaturvedi,J.
Legal Reasoning
Heard Sri Kamlesh Kumar Dwivedi, learned counsel for the appellant, Sri Dhirendra Bahadur Singh, learned counsel for the opposite party no. 2 and learned A.G.A. for the State. This appeal is preferred against the impugned judgment and order dated 19.01.2022 passed by learned Special Judge (SC/ST Act), Agra, in Bail Application No. 271 of 2022 (Imran Vs. State of U.P.), Case Crime No. 437 of 2021, under sections 376/313/323/504/506 IPC, & Section 3(2)5 of the S.C./S.T. Act (Prevention of Atrocities) Act, 1989, Police Station Shahganj, District Agra. The pleadings has been exchanged between the parties Sri Dhirendra Bahadur Singh, has filed his counter affidavit in court itself today taken on record. Learned counsel for the appellant does not want to argue the case on merits. From perusal of the counter affidavit filed by opposite party no. 2 mentioned above sworn by Ms. Santosh Kumari herself (the prosecutrix). After keen perusal of said counter affidavit its paragraph 9 states as under:- "that in reply of contents of paragraphs 12 and 13 of the affidavit in support of appeal it is submitted that deponent herself moved an affidavit at the time of bail application of the appeal, which is correct and deponent is not interested in opposing the bail application of the appellant in the present appeal". Thus from the above averments paragraph 9 of the counter affidavit is amply clear that the prosecutrix has given a concession to the appeal, it seems with some tacit consent between them. Sri Kamlesh Kumar Dwivedi, learned counsel for the appellant has further argued that prosecutrix herself is a major lady, though a divorcee, but mother of four kids aged about 33-35 years. The prosecutrix and the appellant are maintaining relation for the last six years without any objection and resistance. It is alleged that on a false pretext of marrying her she maintained this relationship for all these long six years. From the first information report it is established that on her volition she surrendered before the appellant for a considerable period and have enjoyed this relationship. For all practical purpose, in fact, she was "live-in relationship" with the appellant and thus by no stretched of imagination it could not be stated that the appellant have extracted her consent by playing fraud or misrepresentation as contemplated in section 90 of the I.P.C. Moreover, she herself is giving an affidavit that she does not want to oppose the present appeal on behalf of appellant this conduct, therefore, ample light on her future design and it seems that they have settled their score out side. Learned counsel for the informant-opposite party no. 2 Sri Dhirendra Bahadur Singh though tried to oppose the present appeal but he submits that as instructions he has not opposed the present appeal. The submissions made by learned counsel for the appellant, prima facie, appear quite appealing and convincing for the purpose of bail only. Keeping in view the totality of circumstances and the submissions advanced on behalf of learned counsel for contesting parties, without expressing any opinion on the merits of the case, I am of the view that the appellant has made out a case for bail. Let the appellant-Imran, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable 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 WOULD FULLY COOPERATE IN THE CONCLUSION OF TRIAL WITHIN ONE YEAR AND ANY TEMPERING OR WILLING TACTICS ON THE PART OF THE APPELLANT TO DELAY THE TRIAL WOULD WARRANT THE AUTOMATIC CANCELLATION OF BAIL. (ii) 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. (iii) 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 IPC. (iv) IN CASE, THE APPELLANT MISUSE 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 IPC. (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. However, it is made clear that any willful violation of above conditions by the appellant, shall have serious repercussion on his bail so granted by this court. Since there is provision vide S.C./S.T. (Prevention of Atrocities) Rules 1995 to extend monitory assistance to the victim, she must have received that assistance from the State Government as per provision of Rule 10 and 12(4) of the above Rules. Since the prosecutrix herself filed the counter affidavit and in uncertain terms has given a concession to the appellant after the alleged truce between them. Under circumstances, Special Judge S.C./S.T Act before whom case is pending, is directed to hold an in-depth enquiry within next 15 days together, as to whether there is truce between the contesting parties, if yes, then the court concerned shall pass a suitable orders directing the District Welfare Officer, Agra to recover entire amount (if any) given to the prosecutrix pursuant to Rule 10 and 12 (4) and its Scheduled Annexure No.1 to S.C./S.T. (Prevention of Atrocities) Rules 1995. The District Welfare Officer, Agra is directed to ensure the entire amount given to the prosecutrix under the judicial order passed by the concerned trial court i.e. Special Judge S.C./S.T. Act Agra.
Decision
Accordingly, the appeal is allowed. Impugned judgment and order dated 19.01.2022 passed by learned Special Judge (SC/ST Act), Agra, in Bail Application No. 271 of 2022 (Imran Vs. State of U.P.), Case Crime No. 437 of 2021, under sections 376/313/323/504/506 IPC, & Section 3(2)5 of the S.C./S.T. Act (Prevention of Atrocities) Act, 1989, Police Station Shahganj, District Agra is hereby quashed. Order Date :- 7.3.2022 Vikram Digitally signed by VIKRAM SINGH Date: 2022.03.14 17:47:22 IST Reason: Location: High Court of Judicature at Allahabad