Omkar Pandey v. State of U.P. and 3 Others

Court No. - 64 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 53346 of 2021 Applicant :- Omkar Pandey Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Kapil Tyagi,Rakesh Kumar Srivastava Counsel for Opposite Party :- G.A.,Vidit Narayan Mishra Hon'ble Siddharth,J. Heard learned counsel for the applicant, Sri Vidit Narayan Mishra, learned counsel for the informant and learned A.G.A. for the State. There are allegations against the applicant of committing offence of rape, criminal intimidation of minor girl and offence under Section 3/4 of POCSO Act. Learned counsel for the applicant submits that the victim and her mama used to reside in the same house along with the informant. The applicant was friend of her mama. He also resided in the same house for quite sometime. He has further submitted that the informant used to borrow money from the applicant and he has admitted the same in his statement before the court recorded as PW-II. Learned counsel for the applicant further submits that because of dispute regarding money which the informant did not returned to applicant, false first information report was lodged. No fresh injury was found on the person of victim which may indicate any commission offence of rape, although first information report is prompt. He further submits that PW-I and PW-II, mother and father of the victim, have been examined before the trial court. Applicant is in jail since 24.03.2021 and has no criminal history to his credit. Learned counsel for the informant and learned AGA have vehemently opposed the prayer for bail and have submitted that statement of the victim is about to be recorded before the trial court. Therefore the applicant could not be enlarged on bail at this stage. Keeping 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 and recent judgment dated

11.07.2022 of the Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021 and 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. Applicant is directed to be enlarged on bail after the statement of the victim is recorded before the trial and the trial court is directed to record the statement of the victim positively within a period of one month from the date of production of certified copy of this order. The bail application is allowed. Let the applicant, Omkar Pandey, involved in Case Crime No.141 of 2021, under Sections 376, 342, 506 I.P.C and 3/4 of the Protection of Children from Sexual Offences Act, 2012, Police Station Sector - 39 Noida, District-Gautam Budh Nagar 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 misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail 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. In case of breach of any of the above conditions, the complainant is free to move an application for cancellation of bail before this court. Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted. Order Date :- 16.11.2023 SS High Court of Judicature at Allahabad