Allahabad High Court
Dr. Ashutosh Asthana vs State Of U.P. on 30 September, 2022
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 69
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 22727 of 2020
Applicant :- Dr. Ashutosh Asthana
Opposite Party :- State of U.P.
Counsel for Applicant :- Vikrant Singh Parihar,Abhishek Kumar Jaiswal,Amit Daga,Ashok Kumar Singh,Mayank,Virendra Kumar Jaiswal
Counsel for Opposite Party :- G.A.,Raj Kumar Kesari
Hon'ble Siddharth,J.
Heard Sri Abhishek Kumar Jaiswal and Sri Ashok Kumar Singh, learned counsel for the applicant, Sri Raj Kumar Kesari, learned counsel for the informant and learned A.G.A. for the State.
This is a third bail application. Earlier two bail applications were rejected by coordinate bench of this case, which is not available now.
There is allegation against the applicant of causing offence of gang rape.
Learned counsel for the applicant submits applicant is in jail since 08.04.2018. Before the trial court only two prosecution witnesses have been examined out of 27 prosecution witnesses. Trial is not likely to be concluded in near future.
Learned counsel for the informant has vehmently opposed the prayer for bail and has submitted that the prosecution case has been supported by the victim before the trial court. There is no ground for enlarging the applicant on bail. The co-accused persons being released bail have threatened the victim.
On the other hand learned AGA has opposed the prayer for bail but could not dispute the above submissions.
Regarding long incarceration of under trials prisoners in jail due to delay in conclusion of trial, the Hon'ble Apex Court in re: Union of India vs. K.A. Najeeb reported in AIR 2021 Supreme Court 712 has held in Para 16 of the judgment being reproduced herein below as follows :-
"This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail."
Keeping in view the nature of the offence, evidence on record regarding complicity of the accused, submissions of the learned counsel for the parties noted herein above, larger mandate of the Article 21 of the Constitution of India 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 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, Dr. Ashutosh Asthana, involved in Case Crime No.302 of 2018, under Sections 376-D, 506, 328, 120-B IPC, Police Station Cantt., District- Varanasi 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.
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) The applicant 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.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.
(iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail 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.
(v) 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 absence of the applicant 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.
(vi) Applicant will not make any effort to contact the victim in any manner whatsoever.
In case of breach of any of the above conditions, the complainant is free to move an application for cancellation of bail before this court.
Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
The trial court is directed to conclude the trial against the applicant as expeditiously as possible, preferable within a period of one year from the date of production of certified copy of this order.
Order Date :- 30.9.2022
SS
