Criminal Miscellaneous Bail Application filed by Mukesh Kumar challenging arrest for rape and outraging modesty. Court granted bail citing trial delay and jail overcrowding without merits assessment.
Release of applicant on personal bond and two sureties with strict conditions to ensure trial conduct.
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Court No. - 73
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 53876 of 2022
Applicant :- Mukesh Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Praveen Kumar Singh,Anurag Vajpeyi Counsel for Opposite Party :- G.A.,Anjani Kumar Raghuvanshi
Hon'ble Siddharth,J.
Heard Shri Praveen Kumar, learned counsel for the applicant; Shri Sujan Singh holding brief of Anjani Kumar Raghuvanshi, learned counsel for informant 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, Mukesh Kumar, with a prayer to release him on bail in Case Crime No. 134 of 2022, under Sections 354, 452, 323, 504 and 376(3) IPC, and 3/4 POCSO Act, Police Station Chaubeypur, District- Varanasi, during pendency of trial.
There is allegation against the applicant of outraging the modesty of a girl, beating, threatening, committing the offence of rape and penetrative sexual assault.
Learned counsel for the applicant has submitted that as per the supplementary medical report, the age of the victim is found to be seventeen and a half years. Given margin of one year on higher side she can be considered to be major. In the statement of the victim under section 164 Cr.P.C., she has not made clear allegation against the applicant. The applicant was arrested after three days of the incident by the police. Recital made in the FIR is incorrect. The applicant has been falsely implicated in this case. He has no criminal history to his credit and is languishing in jail since 05.04.2022. The trial in the aforesaid case is not likely to be concluded in near future.
Learned A.G.A. and learned counsel for informant have vehemetnly opposed the prayer for bail of the applicant and stated that the applicant was arrested from the spot of the incident. Hence, he is not entitled to be enlarged on 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 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. & 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.
The court below is directed to conclude the trial against the applicant, as expeditiously as possible, preferably within a period of one year from the date of production of certified copy of this order.
Order Date :- 16.2.2023 Abhishek
Digitally signed by :- ABHISHEK YADAV High Court of Judicature at Allahabad
2 issues framed by the court
Whether the applicant is entitled to bail considering the long pendency of trial and overcrowding.
Whether the fundamental right to speedy trial under Article 21 mandates release despite serious allegations.
Colour shows how this judgement treated each authority
Satendra Kumar Antil Vs. C.B.I. & AnotherDistinguished¶11
Satendra Kumar Antil Vs. C.B.I. & Another, passed in S.L.P. (Crl.) No. 5191 of 2021, judgement dated 11.7.2022
5 provisions across 3 enactments
Mukesh Kumar
State of U.P.
Siddharth
Abhishek Yadav
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
Siddharth and Abhishek Yadav
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