Mukul Kumar v. State of U.P. and 3 Others

Reserved On:- 16.11.2023

Delivered On:- 17.11.2023 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 53507 of 2022 Applicant :- Mukul Kumar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Shishir Kumar Tiwari Counsel for Opposite Party :- G.A.,Abida Syed Hon'ble Siddharth, J.

¶1Heard Sri Shishir Kumar Tiwari, learned counsel for the applicant, Dr. Abida Syed, learned counsel for the High Court Legal Service Committee and the learned AGA for the State.

¶2There is allegation in the FIR lodged by the informant that her minor son and daughter were subjected to sexually abuse by the applicant after manipulating their private parts and showing them obscene video. The applicant is admitted to be the real uncle of children and real brother-in-law of informant.

¶3Learned counsel for the applicant submits that there is dispute regarding the property between the husband of informant and the applicant, who are real brothers. There is property located in Sector 22, Noida being a House No. 06, Block No. D which is in the joint name of applicant, father of the victim, Mukul Kumar and their third brother, Alok Dwivedi. All were jointly living in the same property. The informant and her husband want that his brothers should vacate the property and they become the sole owner of the aforesaid property. The third brother of the applicant, Alok Dwivedi, has already left the property in dispute and is residing apart but the applicant continued to reside in the property with his wife, hence he was falsely implicated in this case by informant. The applicant is in jail since 07.07.2022 and has no criminal history to his credit.

¶4Despite service of notice to opposite party no. 2, no one has appeared to oppose this bail application on behalf of the informant / victim.

¶5Dr. Abida Syed, has filed counter affidavit to the bail application on behalf of High Court Legal Services Committe and opposed the averments on the basis of allegations made in the FIR. She has not disputed the averments made in the supplementary affidavit regarding the dispute of property. There is no corroborative medical evidence in support of the case of informant.

¶6Learned A.G.A has also 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, Mukul Kumar, involved in Case Crime No. 64 of 2022, under Sections-376-AB, 506 IPC and Section 5,6,9,10 of POCSO Act, Police Station-Sector-24, Noida, District-Gautam Buddh 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 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.

¶7In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.

¶8Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted. Order Date :- 17.11.2023 Rohit High Court of Judicature at Allahabad