Allowed

Raju Upadhyay v. State of U.P. and Another

Allahabad HC18 Apr 2023CRLA/814/2023

Case brief

AI extract

What is this about?

Criminal Appeal Nos. 814 of 2023 filed by Raju Upadhyay challenging the rejection of bail by the Special Judge, SC/ST Act, Basti. High Court allowed the appeal and ordered release on bail citing jail overcrowding and procedural flaws in the lower court's consideration.

What did the court decide?

Appellant released on bail via personal bond plus two sureties in like amount, subject to conditions preventing tampering, intimidation, and ensuring court attendance.

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

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Court No. - 80

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Case :- CRIMINAL APPEAL No. - 814 of 2023

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Appellant :- Raju Upadhyay Respondent :- State of U.P. and Another Counsel for Appellant :- Akhilesh Kumar Mishra Counsel for Respondent :- G.A.,Ravindra Prakash Srivastava

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Hon'ble Siddharth,J

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Heard learned counsel for the appellant; learned AGA for opposite party no.1 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 03.01.2023, whereby the Special Judge, SC/ST Act, Basti, has rejected the bail application of the appellant moved by him in Case Crime No. 160 of 2022, under Sections 376 IPC and Section 3(2) (5A) SC/ST Act, Police Station Kotwali, District Basti.

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There is allegation against the appellant that he had affair with the victim. She entered into physical relationship with the applicant on him consent and became pregnant. Thereafter the appellant has refused to marry her.

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Learned counsel for the appellant has submitted that no offence is made out against the appellant. The allegation made against the appellant are absolutely incorrect, false and fabricated. The real fact is that the victim was already married with the appellant Their relationship was consensual and no offence is made out in view of the judgments of Apex Court in the case of Sonu @ Subhash Kumar Vs. State of U.P. & Anothers, 2021 0 Supreme (SC) 182. and Shambhu Kharwar Vs. State of U.P & Another AIR 2022 Supreme Court 3901 . The appellant has been falsely implicated in this case. It is a case of malicious prosecution of appellant under the provisions of SC/ST Act. He has no criminal history to his credit and is languishing in jail since 03.01.2023. 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. 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. He further submits that in case the appellant is released

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on bail, he will again indulge in similar activities and will misuse the liberty of 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 has not properly considered the facts of the case. Hence, in view of the above consideration the order of rejection of bail passed by the court below dated 03.01.2023 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; keeping in view uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; 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.

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Let appellant, Raju Upadhyay, 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 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

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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 :- 18.4.2023 Abhishek

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Digitally signed by :- ABHISHEK YADAV High Court of Judicature at Allahabad

Raju Upadhyay v. State of U.P. and Another

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Raju Upadhyay v. State of U.P. and Another

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