Allahabad High Court
Abdul Rahman @ Kasim 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. - 50214 of 2022
Applicant :- Abdul Rahman @ Kasim
Opposite Party :- State Of U.P.And 3 Others
Counsel for Applicant :- Ramesh Kumar Pandey
Counsel for Opposite Party :- G.A.,Subeet Kumar Tripathi,Tinku Singh,Vijay Singh Gour
Hon'ble Siddharth,J.
Heard learned counsel for the applicant; Ms. Tinku Singh, learned counsel for the informant and learned A.G.A.
The instant bail application has been filed on behalf of the applicant, Abdul Rahman @ Kasim, with a prayer to release him on bail in Case Crime No. 896 of 2022, under Sections 376D(A), 363,504 IPC section 6/5 POCSO Act Police Station Kavi Nagar, District- Ghaziabad, during pendency of trial.
There is allegation against the applicant and other co-accused of abduction of minor girl, commission of offence of rape and threatening besides offence under section 6/5 POCSO Act.Learned counsel for the applicant has submitted that as per ossification test report of the victim her age has been found to be 17 years.Given margin of one year on higher side, she can be considered to be major.Learned counsel for the applicant has further submitted that victim although made allegation against the applicant of committing offence of rape but from her medical report offence does not appears to have been committed. It is a case of false implication of the applicant and co-accused who affixed tiles in the house of the victim. On account of dispute regarding payment of their labour charges dispute took place. The investigating officer tried to corroborate the evidence through C.C.T.V. Camera together but he could not find any evidence. None of the witnesses have been named by the investigating officer , who stated that two boys and girl were seen near the place of incident.. The applicant is in jail since 12.7.2022 and has no criminal history.
Learned A.G.A. and learned counsel for the informant have opposed the bail prayer of the applicant and submitted that victim as per school marksheet is minor aged about 13 years.There is direct evidence against the applicant.However no reply has been 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 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.
Ossification test report of the victim sent by the C.J.M. Ghaziabad to this court, shall be sent back to the court below within one week. The photocopy of the same shall be kept in record
Order Date :- 14.2.2023
Atul kr. sri.
