Allahabad High Court
Istiyak vs State Of U.P. Thru Prin Secy Home Lko. on 31 August, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 27 Case :- CRIMINAL APPEAL No. - 1505 of 2022 Appellant :- Istiyak Respondent :- State Of U.P. Thru Prin Secy Home Lko. Counsel for Appellant :- Dharm Trivedi,Manish Kumar Pathak Counsel for Respondent :- G.A. Hon'ble Ajai Kumar Srivastava-I,J.
Heard learned counsel for the appellant, Sri Alok Saran, learned A.G.A. for the State and perused the entire record.
Counter affidavit filed by the learned A.G.A. is taken on record.
This Criminal Appeal under Section 14-A (2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the order dated 27.05.2022 passed by the learned IInd Additional Sessions Judge/ Special Judge, SC/ST Act Lakhimpur Kheri in bail application No.138 of 2022 arising out of Case Crime No.520 of 2017, under Sections 376D, 452, 506, 392 I.P.C. and Sections 3(2)(5) SC/ ST Act, Police Station Nighashan, District Kheri whereby the bail application of the appellant has been rejected.
From the perusal of the counter affidavit filed by learned A.G.A., it is evident that the notice upon the complainant has already been served in compliance with the order of this Court dated 24.06.2022. However, no one has appeared on behalf of complainant to argue this appeal.
Learned counsel for the appellant has submitted that the appellant is innocent who has been falsely implicated in this case. He has also submitted that the learned court below has miss-appreciated itself in reading evidence on record.
His further submission is that the co-accused, Chhote has already been granted bail by a coordinate Bench of this Court vide order dated dated 16.04.2019 passed in Criminal Appeal No.829 of 2018 (Chhote vs. State of U.P. and another).
Learned counsel for the appellant has also submitted that 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 court in getting the trial concluded expeditiously. 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. The accused/ appellant is languishing in jail since 19.05.2022 who has no previous criminal history.
Learned A.G.A. has, however, opposed the prayer for grant of bail. However, he has been unable to dispute the above contention made by the learned counsel for the accused/appellant.
Having heard the learned counsel for the appellant, learned A.G.A. for the State and upon perusal of record, it transpires that the complainant has been served as stated by the learned A.G.A. According to the first information report, the present appellant along with other co-accused person(s) is said to have entered into the house of the victim and committed rape upon her. The co-accused, Chhote has already been granted bail by a coordinate Bench of this Court vide order dated 16.04.2019 passed in Criminal Appeal No.829 of 2018 (Chhote vs. State of U.P. and another).
Considering the facts and circumstance of the case, without commenting upon merits, I am of the view that the learned court below has failed to appreciate the material available on record. The order passed by the court below is liable to be set aside.
Accordingly, the appeal is allowed and the order dated 27.05.2022 passed by the learned IInd Additional Sessions Judge/ Special Judge, SC/ST Act Lakhimpur Kheri in bail application No.138 of 2022 arising out of Case Crime No.520 of 2017, under Sections 376D, 452, 506, 392 I.P.C. and Sections 3(2)(5) SC/ ST Act, Police Station Nighashan, District Kheri is set aside.
Let the appellant, Istiyak be released on bail in the aforesaid case crime number 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.
(Ajai Kumar Srivastava-I, J.) Order Date :- 31.8.2022 cks/-