Tikaram Kushwaha v. State of U.P

Court No. - 64 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49185 of 2023 Applicant :- Tikaram Kushwaha Opposite Party :- State of U.P. Counsel for Applicant :- Vijay Prakash Singh Kushwaha Counsel for Opposite Party :- G.A. Hon'ble Siddharth,J. Heard learned counsel for the applicant and learned A.G.A for the State. This is second bail application of the applicant. First bail application of applicant was rejected by this Court by the following order passed in Criminal Misc. Bail Application No. 50919 of 2021 is quoted hereinbelow :- " 1. Heard Shri Amrit Shanker Dubey, learned counsel for applicant and learned AGA for State.

¶2The instant bail application has been filed on behalf of the applicant, Tikaram Kushwaha, with a prayer to release him on bail in Case Crime No. 367 of 2021, under Sections-323, 366, 376, 506 IPC, Police Station-Sadar Bazar, District-Agra pendency of trial.

¶3There is allegation against the applicant of abduction of a girl with intent to marry and commission of offence of rape, threatening and beating.

¶4Learned counsel for the applicant submits that it is a case of false implication of the applicant on account of village politics. The applicant is a married man having his own family and he has been falsely implicated in this case.

¶5Counsel for the applicant further submits that the victim was being compelled by her aunt (bua) to indulge in flesh trade and she had earlier made a complaint against her before the S.S.P., Agra on 05.08.2021.

¶6Learned A.G.A has opposed the bail application of the applicant.

¶7After hearing the rival contentions, this Court finds that the victim had made clear allegation of abduction and rape against the applicant in her statement recorded under Section 164 Cr.P.C. Regarding her complaint against her aunt (bua), the informant there is nothing on record except the copy of a complaint. Neither there is evidence of any receipt nor its sending by any mode. Therefore, it is not a fit case for granting bail to the applicant at this stage.

¶8The bail application is accordingly, rejected.

¶9Trial court is directed to conclude the trial of the applicant as expeditiously as possible preferably within a period of six months from the date of production of certified copy of this order. " Learned counsel for the applicant submits that the order of this Court was filed before Court below but till date only charges have been framed on 03.03.2023. Thereafter the witnesses are not turning up. Despite issuance of summons the witnesses are not appearing before the trial court and the court below is not taking any coercive measure against the witnesses for securing their presence. The applicant is in jail since 18.09.2021 and has no criminal history to his credit. This is the first implication of the applicant. 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, Tikaram Kushwaha, involved in Case Crime No. 367 of 2021, under Sections-323, 366, 376, 506 IPC, Police Station-Sadar Bazar, District-Agra, 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. Trial court is directed to conclude the trial of the applicant as expeditiously as possible preferably within a period of one year. Registrar (compliance) is directed to communicate this order to the trial Court for necessary compliance within ten days. Order Date :- 14.12.2023 Rohit High Court of Judicature at Allahabad