Pushpendra Giri v. State of U.P. and Another

Court No. - 85 Case :- CRIMINAL APPEAL No. - 11198 of 2023 Appellant :- Pushpendra Giri Respondent :- State of U.P. and Another Counsel for Appellant :- Harsh Narayan Singh,Prashant Kumar Singh Counsel for Respondent :- G.A. Hon'ble Mayank Kumar Jain,J.

¶1Learned A.G.A informed that service is sufficient. Despite service of notice upon the informant/opposite party no.2, no one has put in appearance on his behalf.

¶2Heard learned counsel for the appellant, learned AGA for opposite party no.1 and perused the material placed on record.

¶3The 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 13.10.2023 whereby the Special Judge, learned Additional Sessions Judge, Banda/Special Judge (SC/ST Act), Banda in Case Crime No. 158 of 2023, under Sections 354, 376, 452, 504, 506, 511 of IPC, Section 67 of Information Technology Act and under Section 3(2)(5A) of SC/ST Act, Police Station Tindwari, District Banda.

¶4There is an allegation in the F.I.R against the appellant that since last one month from the date of lodging the F.I.R, the appellant was circulating indecent photographs of the daughter of the informant on social media. The appellant was also threatening her daughter and abusing her with caste related words. The appellant wanted to defame the daughter of the informant.

¶5Learned counsel for the appellant has submitted that appellant is innocent and has been falsely implicated in this case. No date of incident is mentioned in the F.I.R. The victim during her statement recorded under Section 161 Cr.P.C admitted that she was having relationship with the appellant. So far as the indecent photograph is concerned they are brought on record and these photographs did not indicate that they fall in the category of indecent photographs, therefore, no offence under Section 67 of I.T Act was made out against the appellant. During her statement recorded under Section 164 Cr.P.C, the victim improved her statement and made allegation of attempt of rape against the appellant on 04.07.2023. During investigation no such indecent photograph or video was recovered by the investigating officer. Appellant is languishing in jail since 28.08.2023 having no criminal history. In case, the appellant is released on bail, he will not misuse the liberty of bail.

¶6Per 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.

¶7It 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.

¶8Having 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.

¶9Let appellant, Pushpendra Giri 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.

¶10In 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.

¶11The 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.

¶12It 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.

¶13The criminal appeal is allowed. Order Date :- 30.11.2023 PS High Court of Judicature at Allahabad