Bail application allowed for accused charged under Sections 363, 366, 376 IPC and POCSO Act. Court considered consent of minor victim, lack of criminal history, overcrowding, and right to speedy trial.
Released on bail upon furnishing personal bond and two sureties subject to conditions regarding court appearance and witness tampering.
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Court No. - 73
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 58560 of 2022
Applicant :- Abhishek Kumar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Babban Prasad Dwivedi Counsel for Opposite Party :- G.A.
Hon'ble Siddharth,J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
As per report of the office dated 20.01.2023, notice on opposite party no.2 has been served personally but no one has turned up to oppose this bail application.
There is allegation against the applicant of enticement of minor girl with intent to marry, commission of offence of rape and penetrative sexual assault.
Learned counsel for the applicant submits that from the statement of the victim recorded under Section 164 Cr.P.C she is clearly a consenting party. She has claimed her age is 17 years. Although she is minor but she has not made any allegation of abduction or rape against the applicant. Applicant is in jail since 30.08.2022 and has no criminal history to his credit.
Learned AGA has opposed the prayer for bail but could not dispute the above submissions.
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 and 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 and 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.
Let the applicant, Abhishek Kumar , involved in Case Crime No.134 of 2022, under Sections 363, 366, 376 I.P.C and 3/4 of POCSO Act, Police Station Shivrajpur, District- Kanpur Nagar 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.
(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, the complainant is free to move an application for cancellation of bail before this court.
Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Order Date :- 23.2.2023 SS
Digitally signed by :- SURENDAR SINGH NARANG High Court of Judicature at Allahabad
1 issue framed by the court
Whether the applicant has made out a case for bail considering the nature of offence, age of victim, and fundamental right to speedy trial?
Colour shows how this judgement treated each authority
Satendra Kumar Antil vs. C.B.I.Referred¶10
S.L.P (Crl.) No. 5191 of 2021
7 provisions across 4 enactments
Abhishek Kumar
State Of U.P. And 3 Others
Siddharth
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
