Allahabad High Court
Durgesh Sahani vs State Of U.P. And 3 Others on 2 December, 2023
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:228542
Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42613 of 2023
Applicant :- Durgesh Sahani
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Ashish Kumar
Counsel for Opposite Party :- G.A.
Hon'ble Siddharth,J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
Learned AGA informs that notice on opposite party no.2 has been served but no one has turned up to oppose this bail application.
There are allegations against the applicant of abduction of minor girl belonging to Schedule Caste, commission of offences of rape, criminal intimidation and penetrative sexual assault. Implication under Section 3/4 POCSO Act and Section 3(1) (Dha), 3(2)V, 3(2) Va SC/ST Act have also been made.
Learned counsel for the applicant submits that in the statement of the victim recorded under Section 161 Cr.P.C, she has neither made allegation of abduction nor rape against the applicant. She has admitted eloping with the applicant going to Nepal. In her statement recorded under Section 164 Cr.P.C, she has stated that applicant enticed her to Nepal and kept in the house of her sister. and entered into physical relation-ship on false promise of marriage. Learned counsel for the applicant further submits there is contradiction statements of the victim. Applicant is in jail since 23.07.2023.
Learned AGA has opposed the prayer for bail but could not dispute the above submissions.
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 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, Durgesh Sahani, involved in Case Crime No.240 of 2023, under Sections 363, 366, 376(3), 504, 506 I.P.C and 3/4 POCSO Act and Section 3(1) (Dha), 3(2)V, 3(2) Va SC/ST Act, Police Station Kothibhar, District- Maharajganj 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.
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 and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Order Date :- 2.12.2023
SS
