Allowed

Ashish Kumar v. State of U.P. and Another

Allahabad HC18 Jul 2023CRLA/4957/2023

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal challenging the rejection of bail. The court set aside the lower court's order and granted bail to the appellant Ashish Kumar, relying primarily on the mandate of Article 21 regarding jail overcrowding without expressing an opinion on the merits of the case.

What did the court decide?

Appeal allowed; bail rejected by lower court set aside; appellant released on personal bond and two sureties subject to specified conditions.

Ashish Kumar Vs State of U.P. and Another — Bail and Remand | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:141924

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Court No. - 85

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Case :- CRIMINAL APPEAL No. - 4957 of 2023

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Appellant :- Ashish Kumar Respondent :- State of U.P. and Another Counsel for Appellant :- Jitendra Singh Counsel for Respondent :- G.A.,Manju Verma,Narendra Kumar Yadav,R.L. Varma

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Hon'ble Mayank Kumar Jain,J.

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Counter affidavit filed by learned AGA is taken on record.

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Heard learned counsel for the appellant, learned AGA for the State and learned counsel for the informant 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 19.04.2023, whereby the Special Judge, SC/ST Act, Shahjahanpur has rejected the bail application of the appellant moved by him in Case Crime No. 119 of 2023, under Sections 366, 376 IPC, and Section 3(2)(Va) SC/ST Act, Police Station Madanapur, District Shahjanapur.

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Initially the FIR was lodged under Section 363 of IPC with the allegation that the daughter of the informant went to market on 13.03.2023 at around 3.00 pm. The appellant kidnapped the daughter of the informant. When informant went to the house of the appellant he promised that his daughter would return soon.

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Learned counsel for the appellants has submitted that appellant is innocent and has been falsely implicated in this case. The age of the victim as per the High School Certificate is 18 years 2 months and she is major and was a consenting party. In her statement under Section 161 Cr.P.C. the victim made no allegation that appellant had kidnapped or abducted her rather she accompanied at her own accord with the appellant. It is further submitted that during medical examination no finding of forceful physical assault has been observed. After seven days of the incident the statement under Section 164 Cr.P.C. of the victim was recorded in which she stated that appellant took her to Ludhiyana and established

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physical relations with her. This statement was given under the pressure of informant. It is a case of malicious prosecution under the provisions of S.C./S.T. Act. Applicant is languishing in jail since 04.04.2023 having no criminal history. In case, the appellant is released on bail, he 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 appellant and argued that the victim is minor and in her statement under Section 164 Cr.P.C. she made specific allegations that appellant established forcefully physical relations with her.

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It is not disputed that as per the High School Certificate the date of birth of the victim is 01.01.2005 therefore, she appears to be major at the time of incident. It appears from the arguments advanced by the counsel for the parties and from perusal of material on record that the court below has not properly considered the case of the appellant. Hence, in view of above consideration, the order of rejection of bail passed by the court below dated 19.04.2023 is, 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 appellant, Ashish Kumar be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

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(i) The appellant 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 appellant shall not pressurize/intimidate the prosecution witnesses.

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(iii) The appellant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of

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charge and (iii) recording of statement under Section 313 of Cr.P.C.

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(iv) The appellant 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 appellant shall remain present before the trial court on each date fixed, either personally or through his counsel.

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(vi) The appellant 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 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 :- 18.7.2023 Mohit

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

Ashish Kumar v. State of U.P. and Another

Case brief

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Ashish Kumar v. State of U.P. and Another

Case brief

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