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

Court No. - 64 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 50141 of 2023 Applicant :- Nitesh Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Vipin Kumar,Jai Kishan Counsel for Opposite Party :- G.A. Hon'ble Siddharth,J.

¶1Sri Gyan Prakash, Advocate has filed vakalatnama on behalf of the informant and the same is taken on record.

¶2Heard learned counsel for the applicant, learned counsel for the informant and learned A.G.A for the State.

¶3There are allegations against the applicant of committing offences of gang rape and offence under Sections-5G/6 of POCSO Act against a minor girl aged about fourteen and a half years.

¶4Counsel for the applicant submits that although the victim is minor and supported the allegations made against the applicant in her statements recorded under sections 161 and 164 Cr.P.C., but it is a case of false implication. He has further submitted that in applicant's village the Ex-Pradhan of the village is Bharat Singh and the present elected Pradhan is Deepak Babu, both are related as uncle and nephew. The applicant and his family members supported the present elected Pradhan of the village, as a result the Ex-Pradhan has grudge against them and he has falsely got the applicant implicated. Medical report of the victim shows that there is no sign of commission of alleged offence been found when the alleged incident has taken place in an open field. It is also alleged in the F.I.R. that the applicant and co-accused abducted the victim from her house at about 4:00 am when her mother, brother and sister were present in the house and when she did raised any alarm and cried for help from them, has not been explained. It is stated that the applicant and co-accused took the victim 500 mtrs. away in an open field and ravished her, but not a single scratch has been found on the body of the victim. The applicant is in jail since

30.06.2023 and has no criminal history to his credit.

¶5On the other hand learned A.G.A and learned counsel for the informant have opposed the prayer for bail, but they could not dispute the aforesaid submissions urged by learned counsel for the applicant.

¶6Keeping 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.

¶7Let the applicant-Nitesh, involved in Case Crime No.152 of 2023, under Sections-376D, 506 IPC and Section-5G/6of POCSO Act, Police Station-Baghwala, District-Etah, 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.

¶8In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.

¶9Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

¶10Trial court is directed to conclude the trial of the applicant as expeditiously as possible preferably within a period of one year.

¶11Registrar (compliance) is directed to communicate this order to the trial Court for necessary compliance within ten days. Order Date :- 7.12.2023 Saif High Court of Judicature at Allahabad High Court of Judicature at Allahabad High Court of Judicature at Allahabad