In a bail application regarding a rape case involving sexual assault of a minor, the High Court granted bail to the applicant by relying on overcrowding and fundamental rights without adjudging innocence.
Application allowed; applicant released on bail by furnishing personal bond and two sureties.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Neutral Citation No. - 2023:AHC:171480
Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36236 of 2023
Applicant :- Gangesh Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Rajeev Chaddha Counsel for Opposite Party :- G.A.
Hon'ble Siddharth,J.
List has been revised.
Learned AGA has informed that notice on opposite party no.2 has been served, but no one has put in appearance on behalf of opposite party no.2 to oppose this bail application.
Heard learned counsel for the applicant as well as the learned AGA for the State and perused the material placed on record.
The instant bail application has been filed on behalf of the applicant, Gangesh, with a prayer to release him on bail in Case Crime No. 330 of 2023, under Sections 376, 452, 323, 504, 506 IPC and 3/4 POCSO Act, Police Station Khorabar, DistrictGorakhpur, during pendency of trial.
There are allegations against the applicant of commission of offence of rape, threatening, beating and penetrative sexual assault of a minor girl after entering into her house.
Learned counsel for the applicant has submitted that as per the ossification test report, the age of the victim is 17 years. However, given margin of one year on higher side, she can be considered to be major. The allegation made in the FIR and statement of the victim are absolutely incorrect. No sign of commission of offence of rape was found on the person of the victim. From the statements of witnesses, it appears that dispute took place between the parties because marriage of the applicant and victim was settled, but due to some reasons, it could not take place. Thereafter present implication of the applicant has been made. Even otherwise allegation that applicant entered into her house and committed the forcible rape does not appears to be correct since other family members of victim were also there in the house. The applicant has been falsely implicated in this case. He has no criminal history to his credit and is languishing in jail since 9.6.2023. In case, the applicant is released on bail, he will not misuse the liberty of bail.
Per contra learned A.G.A. has opposed the prayer for bail of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserves any indulgence. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail.
Having considered the submissions of the parties noted above,
finding force in the submissions made by the learned counsel for the applicant; keeping in view 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; 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. & Another, passed in S.L.P.(Crl.) No. 5191 of 2021, judgement dated 11.7.2022 and considering 5-6 times overcrowding in jails over and above their capacity by under trials and without expressing any opinion on the merits of the case, let the applicant involved in the aforesaid crime 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 with the following conditions that :-
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(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.
(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.
(iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail 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.
(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.
In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Order Date :- 25.8.2023 Ruchi Agrahari
Digitally signed by :- RUCHI AGRAHARI High Court of Judicature at Allahabad
2 issues framed by the court
Whether to grant bail to the applicant in a rape trial pendency.
Whether overcrowding in jails justifies granting bail without considering merits.
Colour shows how this judgement treated each authority
Satendra Kumar Antil Vs. C.B.I. & anotherReferred¶14
Satendra Kumar Antil Vs. C.B.I. & another S.L.P.(Crl.) No. 5191 of 2021
5 provisions across 3 enactments
Gangesh
State Of U.P.
Opposite Party No. 2
Siddharth
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
