Shivam Upadhyay @ Shubham Sharma @ Paylat v. State of U.P

Court No. - 64 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 53890 of 2023 Applicant :- Shivam Upadhyay @ Shubham Sharma @ Paylat Opposite Party :- State of U.P. Counsel for Applicant :- Nushra Siddiqui Counsel for Opposite Party :- G.A. Hon'ble Siddharth,J. List has been revised. Heard learned counsel for the applicant as well as the learned AGA for the State and perused the material placed on record. The instant bail application has been filed on behalf of the applicant, Shivam Upadhyay @ Shubham Sharma @ Paylat, with a prayer to release him on bail in Case Crime No. 308 of 2023, under Sections 457, 376 IPC, Police Station Khandauli, District-Agra, during pendency of trial. There is allegation against the applicant of committing the offence of rape of a major woman after entering into her house. Learned counsel for the applicant has submitted that it is a case of false implication. Earlier FIR was lodged by the applicant's side on

16.8.2023 with regard to the incident dated 14.8.2023 under Sections 323 and 308 IPC, wherein applicant suffered fractures on his head and legs. Thereafter the present implication was made by way of counter blast on 19.8.2023 with regard to the same incident dated 14.8.2023. The medical report of the victim does not supports the prosecution case. The offence is alleged to have taken place in open field but no scratch has been found on the body of the victim, when she was allegedly subjected to rape. The victim is a married and major woman aged about 36 years. She has alleged the applicant only to save her husband in cross case lodged by the applicant's side. The applicant has criminal history of one case explained in paragraph no.13 of the bail application and is languishing in jail since 17.10.2023. Per contra learned A.G.A. has opposed the prayer for bail of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserves any indulgence. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail. Having considered the submissions of the parties noted above, finding force in the submissions made by the learned counsel for the applicant; keeping in view 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; 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. & Another, passed in S.L.P.(Crl.) No. 5191 of 2021, judgement dated 11.7.2022 and 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, let the applicant involved in the aforesaid crime 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 with the following conditions that :-

(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 misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail 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 :- 15.12.2023 Ruchi Agrahari High Court of Judicature at Allahabad