Allowed

Shailesh Kumar v. State of U.P. and 3 Others

Allahabad HC9 Nov 2022BAIL/28349/2022

Case brief

AI extract

What is this about?

In this bail application, the court granted bail to the applicant, an accused in a POCSO case. The decision was influenced by the gravity of the offence but also the fact that the victim and her mother turned hostile before the trial court, citing a precedent.

What did the court decide?

The applicant is released on bail upon furnishing a personal bond and two heavy sureties subject to travel and attendance restrictions.

Shailesh Kumar Vs State of U.P. and 3 Others — Child Sexual Offences (POCSO) | Allahabad HC (2022)

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Court No. - 76

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28349 of 2022

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Applicant :- Shailesh Kumar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Omar Zamin Counsel for Opposite Party :- G.A.,Ajit Kumar

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Hon'ble Shekhar Kumar Yadav,J.

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Heard Syed Omar Zamin, learned counsel for the applicant, learned Additional Government Advocate for the State, Mr. Ajit Kumar, learned counsel for first informant and perused the material available on record.

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By means of this application, the applicant is seeking enlargement on bail during the trial in Case Crime No.72 of 2022, under Sections 376 IPC and 3/4 POCSO Act and Section 3 (2) 5 SC/ST Act, Police Station Sector 63 NOIDA, District Gautam Buddh Nagar.

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The contention as raised at the Bar by learned counsel for the applicant is that the applicant is innocent and has been falsely implicated in the present case. The applicant has never committed any offence as alleged in the impugned FIR. There are two certificates provided by the first informant to the investigating officer in which in one certificate the date of birth of the victim is mentioned as 20.07.2005 whereas in another certificate the date of birth of the victim has been mentioned as 20.07.2007 and both certificates are part of the case diary. Further contention is that the mother of the victim as well as the victim who have been examined as PW-1 and 2 have turned hostile before the trial court . Copy of statement of the victim and her mother have been annexed as Annexure SA.1 and 2 to the supplementary affidavit. Lastly, it is argued that the applicant is languishing in jail since 27.03.2022 having no previous criminal history and in case applicant is enlarged on bail, he will not misuse the liberty of bail.

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Per contra, learned A.G.A. as well as learned counsel for first informant have vehemently opposed the prayer for bail, but they could not controvert the submissions made by the learned counsel for the applicant.

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Considering the overall facts and circumstances, the nature of allegations, the gravity of offence, the severity of the punishment, the evidence appearing against the accused,

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submission of learned counsel for the parties, particularly seeing the fact that the victim and her mother have turned hostile before the trial court and also considering the law laid down in the case of Data Ram Vs. State of U.P. and others, 2018 (3), SCC, 2 but without expressing any opinion on merits, this Court finds it to be a fit case for bail.

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Let the applicant- Shailesh Kuma r involved in the aforesaid case be released on bail on furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions :

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(i) The applicant 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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(ii) The applicant 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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(iii) 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., may be issued and if 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 IPC.

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(iv) The applicant 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 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.

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(v) The Trial Court may make all possible efforts/endeavour and try to conclude the trial within a period of one year after the release of the applicant.

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

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It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.

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Order Date :- 9.11.2022

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Ajeet

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Digitally signed by AJEET KUMAR PATEL Date: 2022.11.09 15:13:39 IST Reason: Location: High Court of Judicature at Allahabad

Shailesh Kumar v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Shailesh Kumar v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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