Allahabad High Court
Lucky Alias Himanshu vs State Of U.P. on 10 August, 2023
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:161594
Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35126 of 2023
Applicant :- Lucky Alias Himanshu
Opposite Party :- State of U.P.
Counsel for Applicant :- Akhilesh Srivastava,Saksham Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Siddharth,J.
Heard learned counsel for the applicant and learned A.G.A.
The instant bail application has been filed on behalf of the applicant, Lucky Alias Himanshu, with a prayer to release him on bail in Case Crime No. 107 of 2023, under Sections 376D IPC Police Station Gandhipark, District- Aligarh, during pendency of trial.
There is allegation against the applicant of committing offence of gang rape of allegedly mental unsound women.Learned counsel for the applicant has submitted that from the medical report of the victim no external injury was found on the body of the victim and she was found to be a constant substance abuser and she was under influence of alcohol.The applicant is aged about 24 years and victim is aged about 50 years and has five children. Parties live in common locality.The statement of the victim under section 164(5-A) Cr.P.c. was not recorded.Applicant was made to record his confessional statement about his implication in this case by a the police hence he has been implicated in this case.He was only found standing in the place of incident. The applicant is in jail since 8.3.2023 and has no criminal history.
Learned A.G.A. has opposed the bail prayer of the applicant and submitted that as per F.S.L. report spermatozoa was found in the underwear of the applicant.
Keeping in view the nature of the offence, evidence, complicity of the accused; submissions of the learned counsel for the parties noted above; finding force in the submissions made by the learned counsel for the applicant; keeping view the uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under-trial having fundamental right to speedy trial; larger mandate of the Article 21 of the Constitution of India; considering the dictum of Apex Court in the 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; 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.
Order Date :- 10.8.2023
Atul kr. sri.
