Kamlesh Yadav v. State of U.P. and Another

Court No. - 85 Case :- CRIMINAL APPEAL No. - 9693 of 2023 Appellant :- Kamlesh Yadav Respondent :- State of U.P. and Another Counsel for Appellant :- Alok Kumar Pandey,Kuvar Akhilesh Singh,Narendra Giri,Susheel Kumar Pandey Counsel for Respondent :- G.A.,Abhishek Kumar Yadav Hon'ble Mayank Kumar Jain,J. Supplementary affidavit filed today by learned counsel for the appellant is taken on record. Counter affidavit filed today by learned A.G.A is taken on record. Heard learned counsel for the appellant, learned counsel for the respondent, learned AGA for opposite party no.1 and perused the material placed on record. 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

25.08.2023 passed by learned Special Judge, SC/ST Act, Prayagraj in bail application no. 4246 of 2023 of the appellant arising out of case crime no. 734 of 2022, under Sections 452, 376-D, 506 of IPC, and under Section 3(2)(5) of SC/ST Act, Police Station Nawabganj, District Prayagraj. There is allegation that appellant along with named accused Premchandra committed gang rape with prosecutrix. Learned counsel for the appellant has submitted that appellant is innocent and has been falsely implicated in this case. He further submits that appellant is not named in the F.I.R. The F.I.R is lodged against co-accused Premchandra. The victim did not narrate the name of the appellant during her statement recorded under Section 161 Cr.P.C., she made significant improvement in her statement recorded under Section 161 Cr.P.C., and involved the appellant also in committing gang rape. It is also submitted that during her medical examination no injury was found on the person of the prosecutrix. It is also submitted that named accused Premchandra has already been granted bail by the co-ordinate Bench of this Court vide order dated 24.05.2023 passed in Criminal Misc. Bail Application No. 23515 of 2023. Appellant is languishing in jail since 26.06.2023 and criminal history of the appellant has been explained in paragraph-3 of the supplementary affidavit. In case, the appellant is released on bail, he will not misuse the liberty of bail. Per contra, learned A.G.A. assisted by the learned counsel for the respondent have supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the appellant but could not dispute the aforesaid factual aspects of the matter. 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 impugned order of rejection of bail 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, Kamlesh Yadav 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 :- 7.11.2023 PS High Court of Judicature at Allahabad