Rajkumar Bind v. Ashwani
Case Details
Court No. - 65 Case :- CRIMINAL APPEAL No. - 6140 of 2021 Appellant :- Raj Kumar Bind Respondent :- State of U.P. and Another Counsel for Appellant :- Mashhood Abbas Counsel for Respondent :- G.A. Hon'ble Rahul Chaturvedi,J.
Legal Reasoning
Office report dated 09.02.2022 shows that notice upon opposite party no.2 has been served personally but despite service of notice nor opposite party no.2 has engaged any counsel to represent his case nor filed any counter affidavit. Learned A.G.A. has filed counter affidavit today itself, taken on record. Learned counsel for the appellant does not want to file rejoinder affidavit while he wants to argue the case on merits. Under the circumstances, with the help and aid of learned A.G.A., the Court is proposing to decide this appeal on merits. Heard Shri Mashhood Abbas, learned counsel for the appellant and learned A.G.A for the State and perused the record. This criminal appeal under Section 14 A (2) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short "S.C./S.T. Act") has been filed assailing the legality and validity of the impugned order dated 28.10.2021 passed by the learned Special Judge (SC/ST Act), Chandauli while rejecting the Bail Application No.1611 of 2021 (Rajkumar Bind vs. Ashwani @ Bhole) in Case Crime No.255 of 2021, under Sections 363, 366 I.P.C. and Section 3(2)5 of the S.C./S.T. Act, Police Station-Alinagar, District-Chandauli. Contention raised by learned counsel for the appellant is that the F.I.R. was registered by one Dilip Kumar against the appellant u/s 363 I.P.C. on 26.9.2021 for the alleged incident said to have taken place on 24.9.2021, with the allegation that the informant's daughter Ms. 'A', having date of birth 2.5.2007 (aged about 15 years) was enticed away by the applicant on 24.9.2021 and since then her whereabouts is not known. The girl was eventually recovered on 26.9.2021 itself around 12.00 in the night and thereafter she was put to record her statement u/s 161 and 164 Cr.P.C. There is a marked improvement in the versions of the victim with regard to establishing the physical relationship with the applicant, however, she accepts that she was having relationship with the applicant and they were in love affair with each other. In her 164 statement the victim girl states that she and the applicant got married in a temple. Since the girl has not completed her High School and as per Section 94(2)(b) of the Juvenile Justice Act, the only two documents have to be relied upon regarding the age, but here none of documents are on record to establish the age of the girl, left with no other option medical report regarding the age of the victim girl has to be relied upon. Said medical report is annexed as Annexure-11 to the petition, whereby the C.M.O., Chandauli certifies that her age is 18+ years, as such, she is a major girl, who can understand her future prospects and when she herself states that on her own volition and accord she joined the company of appellant. Under the circumstances, the action of the appellant would not fall within the four corners of Section 363 I.P.C. There are contradictions in the statements of the victim girl with regard to establishment of physical relationship and more particularly when she has declined to get her medically examined, it cannot be said with certainty that she was subject matter of sexual assault. The appellant has got no criminal antecedents and is in jail since 26.09.2021. Learned A.G.A opposed the prayer for bail but could not dispute the above facts. 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, age of the victim girl and the contradictions in her statements u/s 161 and 164 Cr.P.C., the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, the period of detention already undergone by the appellant and also without expressing any opinion on merits of the case, I am of the view that the appellant has made out a case for bail. Let the appellant-Raj Kumar Bind, 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 wilful violation of above conditions by the appellant, shall have serious repercussion on his bail so granted by this court. Keeping in view that though the complainant belongs to the scheduled caste community and as per arguments of learned counsel for the complainant that the accused/appellant who belongs to a higher caste, after his release, may create all sorts of impediments in the smooth trial and may extend allurement and threats to the informant, his family members as well as other witnesses, thus, it is directed that in such eventuality, all these complaints may be raised by the complainant before the Superintendent of Police concerned who would examine objectively after having reports from his agencies at the earliest with regard to threat prospective of complainant and his family members and use his own discretion in the matter, if it desirable, then during trial may provide security to complainant and his near family members. Accordingly, the appeal succeeds and the same stands ALLOWED. Impugned order dated 28.10.2021 passed by the learned Special Judge (SC/ST Act), Chandauli, is hereby set aside. Order Date :- 5.3.2022 M. Kumar Digitally signed by MANISH KUMAR Date: 2022.03.08 16:55:52 IST Reason: Location: High Court of Judicature at Allahabad