Allahabad High Court
Kallu @ Saurabh Mishra vs State Of U.P. And 3 Others on 14 February, 2023
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 73
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2762 of 2023
Applicant :- Kallu @ Saurabh Mishra
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Ajeet Kumar Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Siddharth,J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
There is allegation against the applicant of committing offfence of gang rape besides offence under Section 5 & 6 of POCSO Act.
Learned counsel for the applicant submits that the applicant has been implicated by way of proceedings under Section 156(3) Cr.P.C. There is allegation against the applicant and two co-accused that they committed offence of rape against the victim on 17.06.2020 around 9.00 p.m. Her first information report was not registered hence application under Section 156(3) Cr.P.C. was filed. After about 4 months of the alleged incident first information report was registered and the victim has made similar allegations in her statement under Section 161 Cr.P.C against the applicant. The medical examination conducted after such a long time was of no use. There is prior enmity between families of the applicant and informant and details of criminal litigations pending them have been brought on record. From the statement of the independent witnesses offence alleged has not been found to be true. The victim has falsely implicated the applicant and other co-accused because of earlier enmity between the parties. The trial has begin where the victim has been examined as PW-1 and PW-II and PW-III have also been examined. The applicant has no criminal history and is in jail since 07.12.2022. There is no possibility of tampering the witnesses now.
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, Kallu @ Saurabh Mishra, involved in Sessions Case No. 358 of 2022, Case Crime No.277 of 2020, under Sections 376-D I.P.C and Sections 5 & 6 of POCSO Act, Police Station Islamnagar, District- Budaun 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.
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 :- 14.2.2023
SS
