Allowed

Shanti Lal Kushwaha v. State of U.P. and Another

Allahabad HC4 Oct 2021CRLA/1228/2019

Case brief

AI extract

What is this about?

Criminal Appeal admitting bail to an accused charged under sections 376 IPC and Section 3(2)(5-A) of the SC/ST Act. The Court granted bail citing the appellant's advanced age and biologically incompetent capacity to commit the act, setting aside the impugned order.

What did the court decide?

Appellant released on bail with personal bond and two sureties under specific conditions to ensure trial conclusion within one year.

Shanti Lal Kushwaha Vs State of U.P. and Another — Bail and Remand | Allahabad HC (2021)

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Court No. - 67

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Case :- CRIMINAL APPEAL No. - 1228 of 2019

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Appellant :- Shanti Lal Kushwaha Respondent :- State of U.P. and Another Counsel for Appellant :- Pushpendra Singh,Manoj Kumar Tiwari,Mohammad Asif,Nasim Uddin,Pramod Kumar Dwivedi,Wahid Jamal Counsel for Respondent :- G.A.

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Hon'ble Rahul Chaturvedi,J.

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Heard learned counsel for the appellant as well as learned A.G.A for the State and perused the record.

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This criminal appeal under Section 14 A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short "S.C./S.T. Act") has been filed for setting-aside the impugned order dated 21.01.2019 passed by learned Special Judge, SC/ST Act/Additional Sessions Judge, Court No.2, Bulandshahr in Bail Application No.91 of 2019, arising out of Case Crime no.333 of 2018, under Sections 376 I.P.C. and Section 3(2)(5-A) of SC/ST Act, Police StationRamghat, District-Bulandshahr.

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It is submitted by learned counsel for the appellant that the husband of the victim has lodged the present FIR on the same date of incident i.e. on 17.12.2018 under section 376 IPC and Section 3(2)V of SC/ST Act against the appellant informing the police that his wife was ravished by the appellant and the FIR to this effect was lodged. Admittedly, the victim is married woman. In 164 Cr.P.C. statement, there is no injury seen over the private organ or any sign of struggle over his body. In the 164 Cr.P.C. statement, she reiterates the story by making a mention that she went to attend call of nature whereby the appellant over-powered the girl and forcibly ravished her. Learned counsel for the appellant has shown the Aadhar Card in which date of birth of the appellant is the year 1955 and thus, on the date of incident, he is 65+ years of age. It is contended that the appellant is biologically incompetent to commit this offence. The appellant is languishing in jail since 19.11.2018. The contention is that old aged person of 65+ years is in jail for almost three years and the trial is progressing with snails pace.

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Per contra, learned A.G.A. submits that the F.S.L. report contains the semen of a human being but not necessary the appellant. In the testimony too, the victim has wriggled out from her earlier statement.

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Submission made by learned counsel for the appellant, prima facie, is quite appealing and convincing for the purpose of bail only.

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Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, as well as the period of detention already undergone, and also without expressing any opinion on merits

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of the case, I am of the view that the appellant has made out a case for bail.

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Let the appellant- Shanti Lal Kushwaha , 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 with the following conditions which are being imposed in the interest of justice:-

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(i) THE APPELLANT WOULD FULLY COOPERATE IN THE CONCLUSION OF TRIAL WITHIN ONE YEAR AND ANY TEMPERING OR WILLING TACTICS ON THE PART OF THE APPELLANT TO DELAY THE TRIAL WOULD WARRANT THE AUTOMATIC CANCELLATION OF BAIL.

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(ii) THE APPELLANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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.

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(iii) THE APPELLANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS COUNSEL. IN CASE OF HIS ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM UNDER SECTION 229-A IPC.

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(iv) IN CASE, THE APPELLANT MISUSE THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPELLANT 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 IPC.

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(v) THE APPELLANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) RECORDING OF STATEMENT UNDER SECTION 313 CR.P.C. IF IN THE OPINION OF THE TRIAL COURT 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 AGAINST HIM IN ACCORDANCE WITH LAW.

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However, it is made clear that any wilful violation of above conditions by the appellant, shall have serious repercussion on his bail so granted by this court.

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Accordingly, the appeal succeeds and the same stands allowed. Impugned order dated 21.01.2019 passed by learned Special Judge, SC/ST Act/Additional Sessions Judge, Court No.2, Bulandshahr in Bail Application No.91 of 2019, arising out of Case Crime no.333 of 2018, under Sections 376 I.P.C. and Section 3(2)(5-A) of SC/ST Act, Police Station-Ramghat, District-Bulandshahr, is hereby set aside.

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Order Date :- 4.10.2021 Sumit S

Shanti Lal Kushwaha v. State of U.P. and Another

Case brief

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Shanti Lal Kushwaha v. State of U.P. and Another

Case brief

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What did the court decide?

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