Vikesh Tiwari v. State of U.P. and 3 Others

Court No. - 85 Case :- CRIMINAL APPEAL No. - 10316 of 2023 Appellant :- Vikesh Tiwari Respondent :- State Of U.P. And 3 Others Counsel for Appellant :- Shashi Bhushan Kunwar,Prakhar Saran Srivastava Counsel for Respondent :- G.A. Hon'ble Mayank Kumar Jain,J. Heard learned counsel for the appellant, learned AGA for opposite party no.1 and perused the material placed on record. Learned A.G.A. has also filed counter affidavit wherein it is mentioned that service of notice upon opposite party No.2 is sufficient. The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant to set aside the impugned order dated

05.10.2023 whereby the Special Judge, SC/ST Act, Additional Sessions Judge, Ballia has rejected the bail application of the appellant moved by him in Case Crime No. 344 of 2023, under Sections 366, 376(2) (n), 504, 506 of IPC, and Section 3(1)(da), 3(1)(Dha), 3(2)(Va), 3(2)(V) of S.C./S.T. Act, Police Station Baansdeeh, District Ballia. General allegations leveled against the appellant that on

22.06.2023 at about 10:00 A.M., he enticed away the daughter of the informant. When the informant went to make a complaint, the family members of the appellant addressed them with caste related words and also threatened them. Learned counsel for the appellant has submitted that appellant is innocent and has been falsely implicated in this case. He submitted that victim herself made an application before the Station House Officer, Baansdeeh, District Ballia stating therein that she left her house at her own free will without informing anyone on

22.06.2023 to her friend and she returned on 12.08.2023. It is also submitted that in the statement recorded under Section 161 Cr.P.C., victim has categorically denied that no one has enticed her and stated that she left her home with her own free will. Thereafter, the victim was handed over to her parents. Learned counsel for the appellant further submits that in the statement recorded under Section 164 Cr.P.C., victim has given her statement in the entirely different manner making allegation against the appellant that he committed rape upon her. Sofaras the, videos and photographs are concerned, there is nothing on record which can suggest that appellant ever had any video or photograph of the informant/victim. The victim herself denied to undergo for her internal or external medical examination, therefore, the story of the prosecution is not corroborated with the medical evidence. It is a case of malicious prosecution under the provisions of S.C./S.T. Act. Applicant is languishing in jail since 18.06.2023 having no criminal history. In case, the appellant is released on bail, he will not misuse the liberty of bail. Per contra, learned A.G.A. has supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the appellant and submits that the allegations involved are very serious in nature but he could not point out any material to the contrary. It appears from the arguments advanced by the counsel for the parties and from perusal of material on record that the trial court has not properly considered the case of the appellant. Hence, in view of above consideration, the order of rejection of bail passed by the trial court dated 05.10.2023 is, hereby, set aside. Having considered the submissions of the parties noted above, finding force in the submissions made by the learned counsel for the appellant; appellant being under-trial having fundamental right to speedy; larger mandate of the Article 21 of the Constitution of India, considering 5-6 times overcrowding in jails over and above their capacity by under trials and without expressing any opinion on the merits of the case, Court is of the opinion that the appellant is entitled to be enlarged on bail. Let appellant, Vikesh Tiwari be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

(i) The appellant 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 or tamper with the evidence.

(ii) The appellant shall not pressurize/intimidate the prosecution witnesses.

(iii) The appellant 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 of Cr.P.C.

(iv) The appellant 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 the trial court.

(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel.

(vi) The appellant shall not indulge in any criminal activity or commission of any crime after being released on bail. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that absence of the appellant 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 in accordance with law. The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the appellant, if there is no other legal impediment. It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order. The criminal appeal is allowed. Order Date :- 2.11.2023 Sachin High Court of Judicature at Allahabad