Allowed

Shekhar v. State of U.P. and Another

Allahabad HC7 Jul 2023CRLA/2408/2023

Case brief

AI extract

What is this about?

The High Court allowed criminal appeals filed against the rejection of bail applications. The court set aside the lower court's orders denying bail, releasing the appellants under personal bond and sureties, citing fundamental rights to speedy trial and jail overcrowding without adjudicating case merits.

What did the court decide?

Release of appellants Shekhar and Suresh Kumar Kol on personal bond and two sureties each subject to standard bail conditions.

Shekhar Vs State of U.P. and Another — Pension and Retirement Benefits | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:134656

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Court No. - 85

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Case :- CRIMINAL APPEAL No. - 2408 of 2023

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Appellant :- Shekhar Respondent :- State of U.P. and Another Counsel for Appellant :- Kamlesh Kumar,Rudra Pratap Singh Counsel for Respondent :- G.A.,Sandeep Kumar Tiwari

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with

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Case :- CRIMINAL APPEAL No. - 4864 of 2023

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Appellant :- Suresh Kumar Kol Respondent :- State of U.P. and Another Counsel for Appellant :- Pratibha Jaiswal Counsel for Respondent :- G.A.,Sandeep Kumar Tiwari

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Hon'ble Mayank Kumar Jain,J.

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Both the criminal appeals are related to same case crime number, therefore, the same are being decided by this common order.

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Heard learned counsel for the appellants, learned counsel for the respondent and learned AGA for the State and perused the material placed on record.

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The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant to set aside the impugned order dated 23.02.2023 & 18.03.2023 whereby the Special Judge, SC/ST Act, Sonbhadra has rejected the bail applications of the appellants moved by them in Case Crime No. 352 of 2010, under Sections 376, 504, 506 of IPC, and Section 3(2)(v) of SC/ST Act, Police Station Ghorawal, District Sonbhadra.

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As per the FIR, the case of the prosecution is that an FIR was lodged against three named persons such as Lala, Shekhar and Suresh stating therein that the incident is of 10.03.2010 and it is alleged that co-accused Lala call the prosecutrix and committed rape with her along with present appellants.

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It is submitted by learned counsel for the appellants that appellants are innocent and have been falsely implicated in this case. It is

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submitted that this is the second FIR lodged by the prosecutrix. The first FIR was lodged only against co-accused Lala. No charge sheet has been submitted against the appellants. The appellants are summoned to face trial on an application moved under Section 319 Cr.P.C. by the prosecution vide order dated 23.03.2019 of the court concerned. Thereafter, this order was challenged and the appellants were directed to surrender before the Court. The appellants have surrendered before the trial Court on 18.03.2023.

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It is submitted that during medical examination no mark of injury was observed and no spermatozoa was found. It is submitted that no statement under Section 164 Cr.P.C. of the prosecutrix was recorded during investigation. The statement under Section 161 Cr.P.C. was recorded by a police officer which is not admissible against the appellants. In her statement recorded during the trial the prosecutrix stated that she was having love affair with the Lala. The statement of the prosecutrix and her mother has been recorded. In her cross examination, the prosecutrix did not make any allegation against the appellants. It is also submitted that coaccused Lala has been granted bail by the court concerned itself. There is an inordinate delay in lodging of the FIR. It is further submitted that appellant Shekhar has criminal history in his credit which has been explained in para 34 of the bail application. It is also submitted that Lala was working in factory of the appellant Shekhar and several Panchayat were held in which appellant Shekhar had taken the side of co-accused Lala, therefore, informant was annoyed with him. It is also submitted that no chargesheet was submitted against the appellants after conclusion. It is a case of malicious prosecution under the provisions of S.C./S.T. Act. Appellants are languishing in jail since 21.02.2023 and 18.03.2023 respectively. In case, the appellants are released on bail, they will not misuse the liberty of bail.

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Per contra, learned A.G.A. assisted by learned counsel for the informant has supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the appellants and argued that the victim in her deposition before the court had made allegation against the present appellants and the delay in lodging the FIR has also been stated by her but it is not disputed at this stage that no statement under Section 164 Cr.P.C. of the proseuctrix are recorded and no chargesheet was submitted against the appellants and they have been summoned to face trial and the co-accused Lala have been granted bail.

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It appears from the arguments advanced by the counsel for the parties and from perusal of material on record that the court below

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has not properly considered the case of the appellant. Hence, in view of above consideration, the orders of rejection of bail passed by the court below dated 23.02.2023 & 18.03.2023 are, hereby, set aside.

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Having considered the submissions of the parties noted above, finding force in the submissions made by the learned counsel for the appellant; appellant being under-trial having fundamental right to speedy; larger mandate of the Article 21 of the Constitution of India, 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, Court is of the opinion that the appellants are entitled to be enlarged on bail.

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Let appellants Shekhar and Suresh Kumar Kol be released on bail in the aforesaid case crime number on their furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

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(i) The appellants 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 officer or tamper with the evidence.

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(ii) The appellants shall not pressurize/intimidate the prosecution witnesses.

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(iii) The appellants 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 of Cr.P.C.

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(iv) The appellants 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 the trial court.

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(v) The appellants shall remain present before the trial court on each date fixed, either personally or through their counsel.

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(vi) The appellants shall not indulge in any criminal activity or commission of any crime after being released on bail.

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In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that absence of the appellant is deliberate or without sufficient

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cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed in accordance with law.

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The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the appellant, if there is no other legal impediment.

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It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.

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The criminal appeal is allowed.

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Order Date :- 7.7.2023 Mohit

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Digitally signed by :- MOHIT KUMAR KUSHWAHA High Court of Judicature at Allahabad

Shekhar v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Shekhar v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

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