Akash Kharwar v. State of U.P. and 3 Others

Court No. - 64 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34650 of 2023 Applicant :- Akash Kharwar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Shravan Kumar Yadav,Abhishek Kumar Jaiswal,Anchal Kumar Rao Counsel for Opposite Party :- G.A.,Arvind Singh Sengar Hon'ble Siddharth,J. Heard learned counsel for the applicant; Sri Arvind Singh Sengar, learned counsel for the informant and learned A.G.A for the State. There are allegations against the applicant of abduction of a minor girl with intent to marry, commission of offences of rape and penetrative sexual assault. Counsel for the applicant submits that he was not named in the FIR. His name has surfaced in the statements of victim recorded under Sections 161 and 164 Cr.P.C. From the high school certificate the victim is aged about 15 years while from radio-logical examination report, she is aged above 19 years. Counsel for the applicant also submits that even if the statement of victim is accepted as correct there is neither any allegation of abduction nor forcible rape leveled against the applicant. The victim eloped with the applicant and went to different places and also admitted entering into physical relationship with consent. The applicant is in jail since 19.04.2023 and has no criminal history to his credit. On the other hand learned A.G.A has opposed the prayer for bail. 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 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, Akash Kharwar, involved in Case Crime No. 31 of 2023, under Sections-363, 366, 376(3) IPC and Section 3/4(2) of POCSO Act, Police Station-Dubhar, District-Ballia, 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. In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail. Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted. Order Date :- 1.12.2023 Rohit High Court of Judicature at Allahabad