Amit v. State of U.P. and 3 Others

Court No. - 64 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38465 of 2023 Applicant :- Amit Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Sushil Kumar Pandey Counsel for Opposite Party :- G.A.,Om Narayan Dwivedi,Ratnesh Srivastava Hon'ble Siddharth,J. Counter afÏdavit filed by learned A.G.A. is taken on record. Heard learned counsel for the applicant;Shri Ram Babu Tiwari holding brief of Shri Narayan Dwivedi, learned counsel for the informant and learned A.G.A. Learned counsel for the informant has not filed counter afÏdavit in compliance of the order dated

26.10.2023.He prays for further time to file the same. Prayer is turned down.More than a month has passed, he has not filed counter afÏdavit. The instant bail application has been filed on behalf of the applicant, Amit, with a prayer to release him on bail in Case Crime No. 24 of 2023, under Sections 363,376 IPC and section 5M/6 of POCSO Act Police Station Chhaprauli, District-Baghpat, during pendency of trial. There is allegation against the applicant of committing offence of rape of minor girl aged about nine years besides offence under section 5M/6 of POCSO Act. Learned counsel for the applicant has submitted that it is a case of false implication.The applicant is aged about 50 years and has two children.He is neighbour of the victim.He has submitted that two days ago i.e., 23.1.2023 the informant had sexually assaulted the applicant's daughter for which the applicant has made complaint to the family members of informant consequently panchayat had also taken place and the dispute was resolved simply excusing the informant by the applicant.The victim has suffered swelling and redness in libia majora. There is slight cut mark (0.1 cm.x 1 cm) seen on her libia minora but there is no internal damage found to the private part of her body. The applicant is in jail since

26.1.2023 and has no criminal history. Learned A.G.A. has opposed the bail prayer of the applicant but could not dispute the aforesaid facts.This court finds that mere swelling and redness in libia majora can be caused by other means also, like rubbing ,hitting by hard object, etc.This is first implication of applicant and possibility of fake implication of applicant being neighbour is also there. 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; considering the dictum of Apex Court in the 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; 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 Let the applicant 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.

¶1The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.

¶2The applicant shall cooperate in the trial sincerely without seeking any adjournment.

¶3The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

¶4That the applicant 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 ofÏcer;

¶5The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and 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 to ensure presence of the applicant.

¶6The 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 default of this condition is deliberate or without sufÏcient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. Order Date :- 29.11.2023 Atul kr. sri. High Court of Judicature at Allahabad