Allowed

Kamlesh Kumar Kharwar v. State of U.P. and Another

Allahabad HC10 Oct 2023BAIL/22271/2020

Case brief

AI extract

What is this about?

The High Court of Judicature at Allahabad allowed a bail application. Considering jail overcrowding, delay in trial, and constitutional rights under Article 21, the court granted bail without expressing an opinion on the merits of the case against the accused charged under POCSO and IPC sections.

What did the court decide?

The applicant is released on bail on personal bond and sureties subject to strict conditions regarding court attendance, non-tampering with evidence, and no adjournments.

Kamlesh Kumar Kharwar Vs State of U.P. and… — Child Sexual Offences (POCSO) | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:195340

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Court No. - 64

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 22271 of 2020

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Applicant :- Kamlesh Kumar Kharwar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Abhinav Singh,Ashish Kumar Singh Counsel for Opposite Party :- G.A.

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Hon'ble Siddharth,J.

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Heard learned counsel for the applicant and learned A.G.A for the State.

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There is allegation against the applicant of committing the offences of rape and criminal intimidation of a minor girl.

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Counsel for the applicant submits that in the ossification test report of the victim, her age has been found between 16 to 17 years. Given margin of two years from the higher side, she can be considered to be major. Before the trial court the informant and the victim have already been examined. From the statement of the victim, it appears that she stayed with the applicant throughout the night and she was seen by the pradhan of the village in the company of the applicant in the morning and thereafter panchayat took place and FIR was lodged against the applicant. He has submitted that during the night of the alleged incident the victim never tried to escape from the company of the applicant. The applicant is in jail since 19.03.2020 and has no criminal history to his credit. There are 10 prosecution witnesses under trial. Trial may take time to conclude.

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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

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and above their capacity by the under trials and without 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, Kamlesh Kumar Kharwar, involved in Case Crime No. 47 of 2020, under Sections- 376-AB, 506 IPC and Section 5(1)5(m)/6 of POCSO Act, Police Station- Dudhhi, District- Sonbhadra, 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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Trial court is directed to conclude the trial of the applicant as expeditiously as possible preferably within a period of one year.

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Registrar (compliance) is directed to communicate this order to the trial Court for necessary compliance within ten days.

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Order Date :- 10.10.2023 Rohit

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

Kamlesh Kumar Kharwar v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Kamlesh Kumar Kharwar v. State of U.P. and Another

Case brief

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What did the court decide?

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