Allahabad High Court
Subhash vs State Of U.P. on 11 January, 2023
Bench: Ram Manohar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 50
Case :- CRIMINAL APPEAL No. - 3902 of 2017
Appellant :- Subhash
Respondent :- State of U.P.
Counsel for Appellant :- Arvind Kumar Srivastava,Dinesh Kumar Verma
Counsel for Respondent :- G.A.
Hon'ble Ram Manohar Narayan Mishra,J.
Order on 3rd Bail Application
Heard learned counsel for the appellant and learned AGA for the State.
As this appeal arises out of impugned judgement and order dated 03.06.2017 passed by Additional District and Sessions Judge/ Fast Track Court no. 1, Etawah in Session Trial No. 171 of 2013 (State vs. Subhash and others), Crime no. 349 of 2012, under Sections 363, 366, 376, 504, 506 IPC, P.S. Ekdil, District Etawah, convicting the appellant under Section 363 IPC and sentencing him to undergo four years R.I. with fine of Rs. 5,000/- with default stipulation; six years R.I. with fine of Rs. 10,000/- with default stipulation for charge under Section 366 IPC; 12 years R.I. with fine of Rs. 20,000/- with default stipulation for charge under Section 376 IPC; the bail application of the appellant is being disposed of by this order:
In this application, the appellant seeks suspension of sentence and grant of bail.
Learned counsel for the appellant submits that this is third bail application moved on behalf of the appellant; first bail application was rejected vide order dated 7.11.2017 and second bail application was rejected on 12.7.2019 by the co-ordinate Bench of this Court on merit. Learned counsel submits that co-accused Ramesh, Deewan, Ram Lakhan, who were convicted and sentenced for charge under section 363, 366 IPC under the same session trial, are already released on bail vide order dated 7.11.2017 in their respective appeal, therefore, the appellant deserves to be enlarged on bail. It is further submitted that FIR in the present case was lodged belatedly for which no plausible explanation tendered by the prosecution is there; medical report of the victim does not support the factum of rape on her. Learned counsel submits that the appeal may take some time for its final disposal due to heavy pendency in the court; the appellant is in jail since 3.6.2017 and as per custody certificate issued by the jail concerned, filed with supplementary affidavit, appellant has undergone five years six months 24 days actual imprisonment till 20.7.2022 against the sentenced awarded to him under the impugned judgement thus, the appellant has suffered six years 19 days actual imprisonment in the present case as under trial as well as conviction; the period exceeds seven years including remission therefore in the light of the judgement passed by Supreme Court on 25.02.2022 and 09.05.2022 in the case of Saudan Singh vs. State of U.P. in Criminal Appeal No. 308/2022 arising out of SLP (Crl.) No. 4633 of 2021 and in Suleman Vs. The State of Uttar Pradesh (Misc. Application No. 764 of 2022 in Crl. Appeal No. 491 of 2022), respectively, the appellant is entitled to be released on bail.
The State counsel opposes the bail application and submits that the appellant is main accused in the case; the trial court has convicted and sentenced him on the basis of cogent evidence tendered against him; earlier two bail applications have been rejected by this Court on merit but he is not in a position to dispute the detention period of the appellant.
Considering the totality of the case, in particular, detention period of the appellant and the fact that the appeal may take some time for its final disposal, without further commenting on the merits of the case, this Court is inclined to release the appellant on bail.
Let appellant, Subhash, convicted and sentenced in the above mentioned sessions trial, be released on bail on furnishing a personal bond in the sum of Rs. 50,000/- (Fifty Thousand) and two sureties each in the like amount to the satisfaction of the court concerned.
On acceptance of bail bond and personal bond, the lower court shall transmit photostat copies thereof to this Court for being kept on the record.
List this appeal for final hearing in its due course.
In the meanwhile, Registry to prepare paper book, if not already prepared.
It is made clear that half of the fine shall remain stayed provided the appellant deposits remaining half of the fine awarded under the impugned judgment within one month after being released on bail.
Order Date :- 11.1.2023
Dhirendra/
