Allowed

Kailash Kushwaha v. State of U.P. and 3 Others

Allahabad HC22 Mar 2023BAIL/4907/2023

Case brief

AI extract

What is this about?

Hearing a bail application in a rape case involving POCSO Act charges. The applicant claimed innocence, highlighting delays in FIR and contradictions in victim statements. The Single Judge allowed bail without adjudging merits, finding the applicant had made out a case for bail.

What did the court decide?

Released on bail by furnishing a personal bond and two heavy local sureties.

Kailash Kushwaha Vs State of U.P. and 3 Others — Bail and Remand | Allahabad HC (2023)

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Court No. - 78

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4907 of 2023

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Applicant :- Kailash Kushwaha Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ravi Shanker Pathak,Satyash Chandra Maurya

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Counsel for Opposite Party :- G.A.

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Hon'ble Dr. Gautam Chowdhary,J.

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Office vide its report dated 21.03.2023 has reported that notice issued to the opposite party no.4 has been served personally, however, no one has put in appearance on behalf of the informant. List revised. Heard learned counsel for the applicant, learned A.G.A for the State and perused the record.

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It has been argued by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case. Learned counsel further submits that the incident is alleged to have taken place on 04.03.2022 whereas, F.I.R. has been registered on 06.03.2022 and there is no plausible explanation of such delay. He further submits that initially F.I.R. was registered under Section 294, 504 I.P.C. He further submits that the victim in her statement recorded under Section 161 Cr.P.C. has not whispered about commission of rape whereas, in her statement under Section 164 Cr.P.C. improvisation with regard to commission of rape has been made against the applicant. It is thus contended that there is material contradiction in the statements of victim recorded under Section 161 and 164 Cr.P.C. He also argued that the medical evidence does not corroborate with the prosecution version, which itself cast shadow of doubt on the prosecution story. It is thus contended that no offence against the applicant is made out and

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therefore, the applicant is entitled for bail. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been mentioned. It has also 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 and is also ready to accept all the conditions which the Court may deem fit to impose upon him. He next submits that applicant is languishing in jail since 01.04.2022 having no criminal history.

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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 deserve any indulgence. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail.

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Considering the entire facts and circumstances of the case, submissions of learned counsel for the parties, nature of evidence, and all attending facts and circumstances of the case, without expressing any opinion on merits of the case, this Court is of the view that the applicant has made out a case for bail. Hence the bail application is allowed.

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Let applicant Kailash Kushwaha involved in Case Crime No.52 of 2022 under Sections 294, 323, 504, 376 I.P.C., and Section 3/4 of POCSO Act, Police Station Baruasagar, District Jhansi, be released on bail on furnishing a personal bond and two heavy local sureties each of the like amount to the satisfaction of the court concerned subject to 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 and the

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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 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 default of this condition is deliberate or without sufficient 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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Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted. Order Date :- 22.3.2023 S.Ali

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Digitally signed by :- SHAUKAT ALI High Court of Judicature at Allahabad

Kailash Kushwaha v. State of U.P. and 3 Others

Case brief

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Kailash Kushwaha v. State of U.P. and 3 Others

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