Allowed

Rishu Kushwaha@ Kamal v. State of U.P. and 3 Others

Allahabad HC7 Jul 2023BAIL/13235/2022

Case brief

AI extract

What is this about?

In a criminal bail application, the Allahabad High Court allowed bail to the accused charged with rape, attempt to rape, and intimidation under POCSO and SC/ST Acts. The court emphasized overcrowding and lack of evidence citing the Apex Court's view in Satendra Kumar Antil.

What did the court decide?

Released on bail by furnishing a personal bond and two sureties each in the like amount subject to strict conditions regarding presence in court and conduct.

Rishu Kushwaha@ Kamal Vs State of U.P. and 3… — Child Sexual Offences (POCSO) | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:134721

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Court No. - 64

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13235 of 2022

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Applicant :- Rishu Kushwaha@ Kamal Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Sujan Singh,Sharad Kumar Srivastava,Shreesh Srivastava Counsel for Opposite Party :- G.A.,Beena Mishra,Saumya Srivastava

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Hon'ble Siddharth,J.

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List has been revised.

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Heard learned counsel for the applicant; Ms. Beena Mishra, learned counsel for the opposite party no. 3 and 4 and learned A.G.A for the State.

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There is allegation against the applicant of attempt to commit the offence of rape of a minor girl belonging to scheduled caste and also beating and threatening.

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Counsel for the applicant submits that there was no external injury found on the person of the victim. She refused her medical examination. The applicant is alleged to have committed the offence under the influence of liquor. He is in jail since 30.01.2022 and has no criminal history to his credit.

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On the other hand learned A.G.A has opposed the prayer for bail.

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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 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

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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.

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Let the applicant, Rishu Kushwaha @ Kamal, involved in Case Crime No. 27 of 2022, under Sections- 376/511/323/506 IPC read with Section 7/8 of POCSO Act and Section 3(2)V(A) of SC/ST Act, Police Station- Bithur, District- Kanpur Nagar, 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.

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(i) The applicant shall not tamper with the evidence or threaten the witnesses.

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(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.

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(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.

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(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.

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(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.

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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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Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

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Order Date :- 7.7.2023 Rohit

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Digitally signed by :- ROHIT DAS High Court of Judicature at Allahabad

Rishu Kushwaha@ Kamal v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Rishu Kushwaha@ Kamal 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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