Allahabad High Court
Rakesh Kushwaha vs State Of U.P. And Another on 12 September, 2022
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 69
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 47922 of 2021
Applicant :- Rakesh Kushwaha
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Adarsh Bhushan,Amrendra Nath Rai
Counsel for Opposite Party :- G.A.,Janardan Prasad Tripathi
Hon'ble Siddharth,J.
Heard learned counsel for the applicant; Shri Janardan Prasad Tripathi, learned counsel for the informant and learned A.G.A.
Rejoinder affidavit filed by learned counsel for the applicant is taken on record.
The instant bail application has been filed on behalf of the applicant, Rakesh Kushwaha, with a prayer to release him on bail in Case Crime No. 43 of 2021, under Sections 376,323,504,506 IPC Section 3(2) (V) of SC/ST Act and section 5(d) (1) (n) and 6 POCSO Act Police Station Chakeri, District- Kanpur Nagar, during pendency of trial.
There is allegation against the applicant in the First Information Report that his wife was pregnant and therefore informant was called on 30.1.2022 by the applicant and his wife Usha to look after Usha and new born child to Kanpur. It is stated in the First Information Report that informant is cousin of Usha and applicant is brother-in-law(Jija).It is further alleged that on 25.2.2020 at about 8.30 A.M. when wife of the applicant Usha was hospitalized,applicant committed offence of rape against the informant and threatened her dire consequences. It is alleged that thereafter she was subjected to the same offence number of times by the applicant since 25.2.2020.
Learned counsel for the applicant has pointed out that with regard to the incident dated 25.2.2020,the First Information Report has been lodged on 12.1.2021.The information was given to the police station on 8.1.2021. He has submitted that only explanation of delay in lodging the First Information Report is lock-down on account of spread of corona virus. He has submitted that in January,2021 second wave of corona virus was not there. The second wave of corona virus started at the end of March and beginning of April 2021.He has submitted that applicant was present in the child care center, Shyam Nagar Kanpur at 8.30 A.M..His wife gave birth of female child at the same time. The allegation in the First Information Report is that at the same time he committed offence of rape against the victim which is not correct. He has submitted that applicant has criminal history of two cases, which has been explained in paragraph-27 of the affidavit. He is in jail since 23.9.2021 and has no criminal history
Learned counsel for the informant has vehemently opposed the bail application and has submitted that the applicant was granted anticipatory bail by this court and was granted 90 days time to surrender before the trial court but he surrendered after expiry of the aforesaid period. He has submitted that applicant has committed offence of rape against his close relative and given threat to her hence he is not entitled to enlarge on bail.
Learned A.G.A. has also opposed the bail prayer of the applicant but could not dispute the aforesaid facts.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, larger mandate of the Article 21 of the Constitution of India, considering the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018) 3 SCC 22 and recent judgment dated 11.07.2022 of the Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021 and considering 5-6 times overcrowding in jails over and above their capacity by the under trials and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
Let the applicant be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.
1. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.
2. The applicant shall cooperate in the trial sincerely without seeking any adjournment.
3. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
4. That the applicant 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;
5. The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and 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 to ensure presence of the applicant.
6. The applicant 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.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
The trial court is directed to expedite the trial of the present case and conclude the same expeditiously preferably within a period of two years from the date of production of a certified copy of this order, if there is no legal impediment.
Order Date :- 12.9.2022
Atul kr. sri.
