Vipul @ Mitthu Vs State of U.P. and Another

Neutral Citation No. - 2023:AHC:103831

Court No. - 86

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11179 of 2023

Applicant :- Vipul @ Mitthu Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Rakesh Kumar Srivastava Counsel for Opposite Party :- G.A.

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Hon'ble Vivek Kumar Singh,J.

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Heard Rakesh Kumar Srivastava, learned counsel for the applicant and Mithilesh Kumar, learned A.G.A. appearing for the State.

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This is the second bail application moved on behalf of the applicant. The first bail application moved on behalf of the applicant was rejected by this Court (Hon'ble Vivek Kumar Singh, J.) vide order dated 7.3.2022.

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It has been contended by the learned counsel for the applicant that the applicant has been falsely implicated in the present case due to ulterior motive. It is next contended that the applicant has no motive to commit the offence in question. It is further submitted that the applicant is in jail since 28.2.2023.

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The new ground which has been argued by learned counsel for the applicant that the witnesses i.e. P.W.2 and 3 have not supported the prosecution story and have turned hostile, reference in this regard is made to annexure-7 to the affidavit accompanying this bail application.

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Further the co-accused namely Sumit has already been enlarged on bail by Co-ordinate Bench of this Court vide order dated 28.3.2023 passed in Criminal Misc. Bail Application No.45058 of 2022, a copy of said order has been produced by learned counsel for the applicant which is taken on record. The applicant claims parity.

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Learned counsel for the applicant drawn the attention of this Court towards the dictum of Hon'ble Apex Court rendered in re: Union of India vs. K.A. Najeeb reported in AIR 2021 Supreme Court 712 . Para 16 of the judgment is being reproduced herein below:-

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"This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to

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society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail."

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The Apex Court in the case of Paras Ram Vishnoi vs. The Director, Central Bureau of Investigation passed in Criminal Appeal No. 693 of 2021 (Arising out of SLP (Crl) 3610 of 2020) has observed as under :

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"On consideration of the matter, we are of the view that pending the trial we cannot keep a person in custody for an indefinite period of time and taking into consideration the period of custody and that the other accused are yet to lead defence evidence while the appellant has already stated he does not propose to lead any evidence, we are inclined to grant bail to the appellant on terms and conditions to the satisfaction of the trial court."

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In the aforesaid cases the Hon'ble Apex Court has held that if there is no possibility to conclude the trial in near future and the accused applicant is in jail for a substantial long period then a period of incarceration may be considered as a fresh ground.

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Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused has also been touched upon at length. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required. It has been pointed out that the applicant has no criminal history.

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Learned A.G.A. opposed the prayer for bail has vehemently opposed the prayer for bail.

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Having heard the submissions of learned counsel of both sides, nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, and larger mandate of the Article 21 of the Constitution of India and without expressing any opinion on the merit of the case, I find it to be a case of bail.

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Let the applicant Vipul @ Mitthu involved in Case Crime No.144 of 2021, under Sections 370A(2), 342, 34, 506, 376(D) I.P.C. and Sections 3, 4, 5, 6(1), 7(2)(b) of Immoral Traffic (Prevention) Act and Section 5/6 of POCSO Act (The Protection of Children From Sexual Offences Act, 2012), Police Station Sector-24 NOIDA, District Gautam Budh Nagar be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the 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 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.

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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 of the Indian Penal Code.

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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. 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.

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(iv) 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.

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In case of breach of any of the above conditions, the trial court will be at liberty to cancel the bail.

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It is clarified that the observations, if any, made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the ultimate merits of the case.

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Order Date :- 8.5.2023 Dev/-

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Digitally signed by :- DEV PRAKASH High Court of Judicature at Allahabad

Vipul @ Mitthu v. State of U.P. and Another

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