Setthi @ Mahesh Kushwaha v. State of U.P. and 3 Others

Court No. - 64 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43005 of 2023 Applicant :- Setthi @ Mahesh Kushwaha Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Kailash Pati Singh Yadav Counsel for Opposite Party :- G.A.,Babita Upadhyay Hon'ble Siddharth,J.

¶1Heard Sri Kailash Pati Singh Yadav, learned counsel for the applicant; learned A.G.A for the State and Ms. Babita Upadhyay, High Court Legal Service Committee.

¶2Supplementary affidavit filed today is taken on record.

¶3This is second bail application of the applicant.

¶4The first bail application of the applicant was rejected on

25.11.2021 by the coordinate Bench of this Court which is not available now.

¶5Counsel for the applicant submits that subsequently co-accused, Mohit Yadav, has been enlarged on bail vide Criminal Misc. Bail Application No. 11838 of 2022 by this Court. Before the trial court, the victim and informant have been examined as P.W.-1 and P.W-2. P.W-2 has turned hostile and P.W-1 has not supported the prosecution case. The applicant is in jail since 23.07.2021 and has criminal history of one case explained in supplementary affidavit filed today is taken on record.

¶6On the other hand learned A.G.A has opposed the prayer for bail.

¶7Keeping 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 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.

¶8Let the applicant, Setthi @ Mahesh Kushwaha, involved in Case Crime No. 603 of 2021, under Sections-452, 376-D, 323 IPC and Section 5/6 of POCSO Act, Police Station-Kotwali, District-Lalitpur, 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 misuses the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the 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 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.

¶9In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.

¶10Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

¶11Trial court is directed to conclude the trial of the applicant as expeditiously as possible preferably within a period of six months.

¶12Registrar (compliance) is directed to communicate this order to the trial Court for necessary compliance within ten days. Order Date :- 27.10.2023 Rohit High Court of Judicature at Allahabad