Allahabad High Court
Chhota @ Murtaza And Another vs State Of U.P. And Another on 11 April, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 50 Case :- CRIMINAL APPEAL No. - 7446 of 2022 Appellant :- Chhota @ Murtaza And Another Respondent :- State of U.P. and Another Counsel for Appellant :- Haya Rizvi,Amit Rai,Sanjay Singh Counsel for Respondent :- G.A.,Amit Kumar Yadav Hon'ble Ram Manohar Narayan Mishra,J.
Sri Amit Kumar Yadav, counsel for the respondent no. 2 is not present even in revised call.
Heard learned counsel for appellants, learned A.G.A. for the State-Respondent and perused the impugned judgement and order.
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 16.8.2022 passed by Special Judge, SC/ST Act, Muzaffar Nagar in Bail Application no. 3456 of 2022 (Rizwan and others vs. State of U.P.) in Case Crime no. 440 of 2022, under Sections 354(B), 506, 34 IPC and Section 67(A) of I.T. Act and Section 3(1)(w)(ii) of SC/ST Act, P.S. Kotwali Nagar, District Muzaffar Nagar whereby his prayer for bail has been rejected.
It is contended by counsel for the appellants that victim has stated in her statement u/s 161 Cr.P.C. that she is married lady aged around 30 years; victim in FIR and in statement u/s 161 Cr.P.C. only named accused Anuj, who is enlarged on bail vide order dated 21.3.2023 passed by this Court in Criminal Appeal no. 7922 of 2022 and name of other accused persons surfaced for the first time in the statement of husband of the victim recorded during investigation; video of the incident is said to have been recorded by co-accused Kuldeep and a mobile phone was recovered from his possession, however, co-accused Kuldeep has also been granted bail by this Court in Criminal Appeal No. 7708 of 2022 alongwith co-accused Ankit and Anuj; appellant is in jail since 31.7.2022; statement of the victim was recorded on 8.8.2022 in which general role has been assigned to the appellant alongwith other co-accused persons. He lastly submitted that on the date of incident dated 28.07.2022 some unknown boys had grabbed her forcefully, dragged towards field undressed her forcefully and tried to outrage her modesty. She has denied her statement under Section 161 Cr.P.C. also which has been recorded by Investigating Officer and she has been declared hostile by prosecution, in cross-examination also she has stated that present appellants had committed no wrong with her, she was known to them prior to the incident and they were not involved in the incident.
Learned A.G.A. opposed the bail application and submitted that victim had herself lodged F.I.R. in present case and she supported F.I.R. version in her statement under Section 161 and 164 Cr.P.C., the accused appellants and others were booked by police and the case is under trial. It appears that the informant/victim has been won away by the accused persons and for that reason she has not supported her own version during trial. However, he did not dispute the statement of the victim filed in supplementary affidavit filed on behalf of other appellants and the co-accused are on bail by the orders of this Court.
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 16.8.2022 is, hereby, set aside.
Let appellants, Chhota @ Murtaza and Abdul Rahman, be released on bail in aforesaid Case Crime on their 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 appellants 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 appellants 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 appellants misuse 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 :- 11.4.2023 Dhirendra/