Appellant appealed against bail rejection in a SC/ST atrocity case involving rape and molestation. Court allowed appeal, set aside rejection, and granted bail due to procedural unfairness and severe jail overcrowding, without examining merits.
Set aside order rejecting bail; appellant released on personal bond and two sureties subject to conditions.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 80
Case :- CRIMINAL APPEAL No. - 8663 of 2022
Appellant :- Indresh Dubey Respondent :- State of U.P. and Another Counsel for Appellant :- Sanjay Shukla Counsel for Respondent :- G.A.
Hon'ble Siddharth,J.
List has been revised.
As per office report dated 02.07.2023, notice on opposite party no.2 has been served, but no one has put in appearance on behalf of opposite party no.2 to oppose this appeal.
Heard learned counsel for the appellant; learned AGA for opposite party no.1and 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 12.10.2022, whereby the Special Judge, SC/ST Act/ Additional Session Judge, Gorakhpur has rejected the bail application of the appellant moved by him in Case Crime No. 266 of 2022, under Sections 376, 504, 506, 342, 354 IPC and Section 3(2)(v) SC/ST (P.A) Act, Police Station Gola, District Gorakhpu.
There is allegation against the appellant of committing offence of rape, illegal confinement, sexual molestation and catching hold of minor girl.
Learned counsel for the appellant submits that it is case of false implication. The age of the victim has been found about 17 years in the report of radiologist. Given margin of one year on higher side, she can be considered to be major. Victim has refused to get herself medical examined. Offence alleged can not be proved by means of any corroborative evidence in absence of medical evidence. Applicant is in jail since 29.08.2022 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. He further submits that in case the appellant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.
It appears from the arguments advanced by the counsel for the parties and from persual of material on record that the court below has not properly considered the case of the appellant. Hence, in view of the above consideration, the order of rejection of bail passed by the court below dated 12.10.2022 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; 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.
Let appellant, Indresh Dubey, 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 :- 19.4.2023 SS
Digitally signed by :- SURENDAR SINGH NARANG High Court of Judicature at Allahabad
3 issues framed by the court
Whether appeal against rejection of bail application under SC/ST Act should be allowed to ensure fair trial and speedy conclusion.
Whether appellant is entitled to bail considering the one-sided investigation and potential overcrowding in jails.
Whether observations in bail order should be construed as expression of opinion on merits of the case.
2 provisions across 2 enactments
Indresh Dubey
State of U.P.
Siddharth
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
