Allowed

Shiva @ Nirdesh Kushwaha v. State of U.P. and 3 Others

Allahabad HC22 Aug 2023BAIL/35499/2023

Case brief

AI extract

What is this about?

The High Court of Judicature at Allahabad allowed a bail application filed under CrPC. Considering jail overcrowding, uncertainty of the trial conclusion, and a Supreme Court decision, the court granted bail subject to strict conditions regarding trial attendance and conduct.

What did the court decide?

Bail allowed subject to personal bond, two sureties, and conditions preventing witness tampering, ensuring trial attendance, and prohibiting further criminal activity.

Shiva @ Nirdesh Kushwaha Vs State of U.P… — Child Sexual Offences (POCSO) | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:168346

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Court No. - 64

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35499 of 2023

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Applicant :- Shiva @ Nirdesh Kushwaha Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Sudhanshu Pratap Singh Counsel for Opposite Party :- G.A.

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Hon'ble Siddharth,J.

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Learned A.G.A. informs that notice has been served upon the opposite party no.2 but no one appears on his behalf.

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

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The instant bail application has been filed on behalf of the applicant, Shiva @ Nirdesh Kushwaha, with a prayer to release him on bail in Case Crime No. 142 of 2023, under Sections 363,376 IPC Section 3/4 POCSO Act and section 3(2)5 of SC/ST Act Police Station Rasoolabad, District- Kanpur Dehat, during pendency of trial.

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There is allegation against the applicant of abduction of minor girl belonging to schedule caste and committing offence of rape and penetrative sexual assault.Learned counsel for the applicant has submitted that victim has neither made allegation of rape nor abduction and nor made any allegation under the provisions of S.C./S.T. Act. In her statement under section 164 Cr.P.C. she has stated that she left her house on her own and went to Haryana and she has not even identified the applicant. The applicant is in jail since 30.4.2023 and has no criminal history.

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Learned A.G.A. has opposed the bail prayer of the applicant but could not dispute the aforesaid facts.

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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

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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 recent judgment dated 11.07.2022 of the 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 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 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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The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.

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The applicant shall cooperate in the trial sincerely without seeking any adjournment.

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The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

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That the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police ofÏcer;

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The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and 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

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liberty of bail and pass orders in accordance with law to ensure presence of the applicant.

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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 default of this condition is deliberate or without sufÏcient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his 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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Order Date :- 22.8.2023

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Atul kr. sri.

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Digitally signed by :- ATUL KUMAR SRIVASTAVA High Court of Judicature at Allahabad

Shiva @ Nirdesh Kushwaha v. State of U.P. and 3 Others

Case brief

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Shiva @ Nirdesh Kushwaha v. State of U.P. and 3 Others

Case brief

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