Sanjay Kushwaha vs State Of U.P. And 3 Others
2023 Latest Caselaw 14778 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:101808
 
Court No. - 76
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9202 of 2023
 

 
Applicant :- Sanjay Kushwaha
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Ram Raksha Tiwari
 
Counsel for Opposite Party :- G.A.,Anil Kumar Sonker,R.U. Rinki Renu
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. This is the second bail application.

2. First bail application was rejected vide order dated 14.7.2021 by a reasoned order considering the statement of a victim, a minor girl recorded under Sections 161 and 164 Cr.P.C. wherein she remained consistent against applicant.

3. Heard Sri Ram Raksha Tiwari, learned counsel for applicant, Sri Markandey Singh, learned Brief Holder for State and Mrs.R.U. Rinki Renu on behalf of O.P. No.3.

4. The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No.190 of 2020 (Special Trial No.836 of 2020) under Sections 376, 452, 506 I.P.C. & Section 3/4 POCSO Act, Police Station-Kotwali Dehat, District-Banda.

5. Learned cousnel for applicant submitted that during trial, testimony of mother of victim, P.W.1 and P.W.2, victim has been recorded. Learned counsel further submitted that P.W.1 has not completely supported the prosecution case in her examination-in-chief and during her short cross-examination, she has denied the occurrence. He further submits that P.W.2 i.e. victim has supported the case of prosecution in her examination-in-chief. However, after her cross-examination, she has denied the allegations and was declared hostile. Applicant is languishing in jail since 21.8.2020, and considering the nature of evidence before Trial Court there is a least likelihood of conviction.

6. Learned Brief Holder for State and learned counsel appearing on behalf of O.P. No.3 have not contradicted the above submissions on the basis of record and have referred judgment of Supreme Court in the case of Mahila Vinod Kumari Vs. State of Madhya Pradesh, (2008) 8 SCC 34, that even in these circumstances, it cannot be said at this stage that there is no possibility of conviction.

7. LAW ON BAIL - A SUMMARY

(A) The basic rule may perhaps be tersely put as bail, not jail.

(B) Power to grant bail under Section 439 Cr.P.C., is of wide amplitude but not an unfettered discretion, which calls for exercise in a judicious manner and not as a matter of course or in whimsical manner.

(C) While passing an order on an application for grant of bail, there is not need to record elaborate details to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal. However, a Court cannot completely divorce its decision from material aspects of the case such as allegations made against accused; nature and gravity of accusation; having common object or intention; severity of punishment if allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of witnesses being influenced by accused; tampering of evidence; character, behaviour, means, position and standing of accused; likelihood of offence being repeated; the frivolity in the case of prosecution; criminal antecedents of accused and a prima facie satisfaction of Court in support of charge against accused. The Court may also take note of participation or part of an unlawful assembly as well as that circumstantial evidence not being a ground to grant bail, if the evidence/ material collected establishes prima facie a complete chain of events. Parity may not be an only ground but remains a relevant factor for consideration of application for bail.

(D) Over crowding of jail and gross delay in disposal of cases when undertrials are forced to remain in jail (not due to their fault) may give rise to possible situations that may justify invocation of Article 21 of Constitution, may also be considered along with other factors.

(See, State Of Rajasthan, Jaipur vs. Balchand @ Baliay (AIR 1977 SC 2447 : 1978 SCR (1) 535; Gurcharan Singh vs. State (Delhi Administration), (1978) 1 SCC 118); State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21; Prasanta Kumar Sarkar vs. Ashis Chatterjee and Anr (2010)14 SCC 496; Mahipal vs. Rajesh Kumar, (2020) 2 SCC 118; Ishwarji Mali vs. State of Gujarat and another, 2022 SCC OnLine SC 55; Manno Lal Jaiswal vs. The State of U.P. and others, 2022 SCC OnLine SC 89; Ashim vs. National Investigation Agency (2022) 1 SCC 695; Ms. Y vs. State of Rajasthan and Anr :2022 SCC OnLine SC 458; Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022)3 SCC 501; and, Deepak Yadav vs. State of U.P. and Anr. (2022)8 SCC 559)

8. This is the second bail application, applicant is in jail since 21.8.2020 i.e. for about 2 and half years and taking note of the above referred fact i.e. nature of evidence of victim and considering the submission of learned counsel for the applicant in regard to least possibility of conviction, applicant has made out a case for bail.

9. At this stage, learned counsel for applicant prayed that trial may be expedited.

10. Considering the aforesaid submission, learned Trial Court is directed to conclude the trial expeditiously and shall take note of the above referred judgment in Mahila Vinod Kumari (supra) while considering the evidence on record.

11. Let the applicant-Sanjay Kushwaha, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Court concerned with the following conditions which are being imposed in the interest of justice:-

(i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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 will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C., may be issued and if applicant fails 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 I.P.C.

(iv) The Trial Court may make all possible efforts/endeavour and try to conclude the trial expeditiously, preferably within a period of six months after release of the applicant, if there is no other legal impediment.

(v) Applicant has to appear on each and every date before learned Trial Court and any application for exemption of his appearance on vague ground could be a ground for cancellation of bail by learned Trial Court without even issuing notice.

12. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.

13. The bail application is allowed.

14. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.

Order Date :- 11.5.2023

SB