Allowed

Mahesh v. State of U.P. and Another

Allahabad HC21 Apr 2023CRLA/9080/2022

Case brief

AI extract

What is this about?

The High Court allowed the appellant's criminal appeal under the SC/ST Act to set aside the special judge's bail rejection order. The court set aside the order due to delay in the FIR and suspicious conduct, and released the appellant on bail citing constitutional rights against criminalization of the trial and jail overcrowding.

What did the court decide?

Appellant Mahesh released on bail subject to personal bond, two sureties, and conditions regarding witness tampering and court attendance.

Mahesh Vs State of U.P. and Another — Criminal Trial and Appeal | Allahabad HC (2023)

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Court No. - 80

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Case :- CRIMINAL APPEAL No. - 9080 of 2022

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Appellant :- Mahesh Respondent :- State of U.P. and Another Counsel for Appellant :- Dharmendra Pratap Singh Counsel for Respondent :- G.A.,Devesh Kumar Sharma

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Hon'ble Siddharth,J.

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List has been revised.

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Heard Shri Dharmendra Pratap Singh, learned counsel for the appellant; Shri Devesh Kumar Sharma, learned counsel for the opposite party no. 2 and learned AGA for State, 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 30.09.2022 whereby the Special Judge, SC/ST Act, Mathura, has rejected the bail application of the appellant moved by him in Case Crime No. 585 of 2022, under Sections 376-D, 326, 328 IPC and Section 3(2) V SC/ST Act, Police Station Kosikalan, District Mathura.

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There is allegation in the FIR that the victim met the appellant on the way and she was offered lift by the appellant on his motorcycle. He took her to place where he called his friends, Mahendra and another. They gave the victim drink to consume and after consuming the same she became unconscious and was subjected to gang rape and thereafter she was thrown near the railway track. Railway Police picked her and admitted her in the hospital.

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Learned counsel for the appellant has submitted that the victim was found by the track man of railway in injured conditions near railway track and when he found her she was requesting for water. He provided her water and she informed him that she has suffered injuries after coming in contact with the train. She informed the phone number of her son, Rahul, who was informed on phone and she was taken to the Primary Health Centre and then to the hospital. Her legs were found badly injured when she was found on the railway track. Learned counsel for appellant has submitted that FIR in this case was lodged belatedly after about one and a

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half months on the false allegation of gang rape and causing of fracture injury and intoxication. He has submitted that initially, the victim refused to get her internal medical examination conducted on 14.07.2022 as informed by the doctor of the District Women Hospital, Mathura. The doctor at that time did not found any physical or genital injury caused to the victim. Her one leg was amputated and she was discharged from hospital on 07.07.2022. The FIR was lodged on 12.07.2022 implicating the appellant and other co-accused persons. The victim got her internal medical examination conducted thereafter, wherein no sign of gang rape was found. Learned counsel for appellant has submitted that the implication was made only for the purpose of getting compensation from the State Government belatedly by falsely implicating the appellant. The location of the appellant on the place of incident was not found in CDR details. 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 13.07.2022. In case, the appellant is released on bail, he will not misuse the liberty of bail.

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Learned A.G.A. and learned counsel for informant have supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the appellant and submitted that there is allegation in the FIR that the appellant and other co-accused crushed the legs of the victim under the wheels of motorcycle and threw her on the railway track. They have further submitted that only after the the victim was discharged from the hospital, the FIR was lodged on 12.07.2022 because the treatment of the victim was more important than lodging of FIR and hence the delay in lodging of FIR stands explained.

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After hearing the rival contentions, this Court finds that the allegations against the appellant do not inspire confidence in view of the delay in lodging of the FIR and the conduct of the victim of first refusing her internal medical examination soon after the incident and thereafter agreeing to the same after more than one and a half months. In case the offence of gang rape was committed against her why the appellant and the other co-accused would have crushed her legs has not been explained. From the statement of track man and the GRP Police, it is clearly a case of railway accident. It seems to be a case of false implication of the appellant for the purpose of getting compensation from the State Government.

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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 facts of the case. Hence, in view of the above consideration, the order of rejection of bail passed by the court below dated 30.09.2022 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, Mahesh, 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 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 :- 21.4.2023 Abhishek

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

Mahesh v. State of U.P. and Another

Case brief

What is this about?

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Mahesh v. State of U.P. and Another

Case brief

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