Sunil Yadav v. State of U.P. and Another

Court No. - 85 Case :- CRIMINAL APPEAL No. - 8472 of 2023 Appellant :- Sunil Yadav Respondent :- State of U.P. and Another Counsel for Appellant :- Namit Srivastava,Parul Srivastava Counsel for Respondent :- G.A.,Anjani Kumar Mishra Hon'ble Mayank Kumar Jain,J. Counter affidavit filed today by learned counsel for opposite party no. 2 is taken on record. Supplementary affidavit filed today by learned counsel for the appellant is taken on record. Heard learned counsel for the appellant, learned counsel for opposite party no. 2, learned Additional Government Advocate for the State of U.P. and perused the record. This criminal appeal under Section 14-A(2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred by the appellant with the prayer to set aside the impugned order dated 04.08.2023 passed by learned Special Judge (SC/ST Act), Jaunpur in Bail Application No. 361 of 2023, arising out of Case Crime No. 0212 of 2023, under Sections 376 I.P.C., and Section 3(2)(5) of SC/ST Act, Police Station Mungra Badshahpur, District Jaunpur. There is an allegation in the F.I.R against the appellant is that on

12.07.2023 at around 7:00 p.m, when the informant has gone to ease herself, the appellant who was in ambush had committed rape with her. Learned counsel for the appellants submits that appellants are innocent and have been falsely implicated in this case. The victim refuse to undergo for her medical examination. Initially the F.I.R was lodged under Sections 376 I.P.C, 3/4 of the POCSO Act and Section 3(2) 5A of the S.C./S.T Act but on the basis of the statement of the victim sections of POCSO Act are deleted. Durind her deposition before the trial, the victim retracted with her statement recorded under Section 164 Cr.P.C and stated that she could not identify the person who had committed rape with her since he had covered his face. The F.I.R was lodged on the instigation of the persons with whom the mother of the victim was working. The appellant is languishing in jail since 20.07.2023 having no criminal history. In case, the appellant is released on bail, he will not misuse the liberty of bail. Per contra, learned A.G.A. opposed the prayer for bail but could not dispute the aforesaid factual aspects of the matter. It 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 passed by the trial court is, hereby, set aside. Having 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. Let appellant, Sunil Yadav 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. In 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. The 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. It 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. The criminal appeal is allowed. Order Date :- 4.12.2023 PS High Court of Judicature at Allahabad