Honble Mayank Kumar Jain J set aside the special courts bail rejection order, releasing the appellant on personal bond and sureties. The decision relied on jail overcrowding and Article 21 rights without adjudicating case merits.
Appellant released on bail by furnishing personal bond and two reliable sureties in like amount.
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Neutral Citation No. - 2023:AHC:144310
Court No. - 85
Case :- CRIMINAL APPEAL No. - 5413 of 2023
Appellant :- Jitendra Sahani Respondent :- State of U.P. and Another Counsel for Appellant :- Brijesh Kumar Mishra Counsel for Respondent :- G.A.
Hon'ble Mayank Kumar Jain,J.
Heard learned counsel for the appellant, learned AGA for opposite party no.1 and perused the material placed on record.
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 27.04.2023 whereby the Special Judge, SC/ST Act, Deoria has rejected the bail application of the appellant moved by him in Case Crime No. 261 of 2022, under Sections 376, 504, 506 of IPC, and Section 3(2)5 of SC/ST Act, Police Station Barhaj, District Deoria.
Learned counsel for the appellant has submitted that appellant is innocent and has been falsely implicated in this case. It is submitted that as per the academic certificate victim is major since her date of birth is 09.09.1996. It is further submitted that during medical examination no sign of rape was observed on the person of the victim. It is further submitted that the victim herself is a deponent on behalf of appellant and annexed affidavit with the memo of appeal and it is mentioned that the appellant and victim have solemnized their marriage and now they are living as husband and wife. It is a case of malicious prosecution under the provisions of S.C./S.T. Act. Applicant is languishing in jail since 06.03.2023 having no criminal history. In case, the appellant is released on bail, he will not misuse the liberty of bail.
Per contra, learned A.G.A. has supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the appellant and submits that the allegations involved are very serious in nature but he could not point out any material to the contrary.
It appears from the arguments advanced by the counsel for the parties and from perusal of material on record that the trial court
has not properly considered the case of the appellant. Hence, in view of above consideration, the order of rejection of bail passed by the trial court dated 8.2.2023 is, hereby, set aside.
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 appellant is entitled to be enlarged on bail.
Let appellant, Jitendra Sahani 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:
(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.
(ii) The appellant shall not pressurize/intimidate the prosecution witnesses.
(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 charge and (iii) recording of statement under Section 313 of Cr.P.C.
(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.
(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel.
(vi) The appellant shall not indulge in any criminal activity or commission of any crime after being released on bail.
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.
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.
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.
The criminal appeal is allowed.
Order Date :- 20.7.2023 Mohit
Digitally signed by :- MOHIT KUMAR KUSHWAHA High Court of Judicature at Allahabad
2 issues framed by the court
Whether the impugned order rejecting bail should be set aside and appellant released on bail?
Whether the appellants fundamental right to speedy trial under Article 21 justifies release on bail despite severity of allegations?
3 provisions across 3 enactments
Jitendra Sahani
State of U.P.
Another
Mayank Kumar Jain
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
