Tunnu @ Sandeep Rawat Vs State of U.P. Thru. Prin. Secy. Home Lko. and 3 Others

Neutral Citation No. - 2024:AHC-LKO:78490

Court No. - 11

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11137 of 2024

Applicant :- Tunnu @ Sandeep Rawat Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And 3 Others Counsel for Applicant :- Gaurav Shukla Counsel for Opposite Party :- G.A.

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Hon'ble Rajesh Singh Chauhan,J.

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Heard Sri Gaurav Shukla, learned counsel for the applicant and Sri Virendra Kumar, learned AGA.

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This is the third bail application. The first bail application has been rejected by Hon'ble Dinesh Kumar Singh, J. for want of prosecution vide order dated 01.11.2022 passed in Criminal Misc. Bail Application No. 12028 of 2021 (Tunnu @ Sandeep Rawat) and second bail application was rejected by this Court on merits vide order dated 02.05.2024 passed in Criminal Misc. Bail Application No. 2572 of 2023 (Tunnu Alias Sandeep Rawat).

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The applicant is in jail since 20.9.2020 in Session Trial No. 1919 of 2020, F.I.R. No.524 of 2020, u/s 376 A.B. IPC & 5, M/6 Protection of Children from Sexual Offence Act, 2012, P.S. Para, District Lucknow.

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On being asked from learned counsel for the applicant about the new ground to consider the third bail application he has submitted that while rejecting the second bail application of the present applicant vide order dated 2.5.2024 in Criminal Misc. Bail Application No. 2572 of 2023 (Tunnu alias Sandeep Rawat vs. State of U.P. and others) this Court directed to record the evidence of child at the earliest preferably within a period of 15 days and after recording such statement the trial be concluded within a period of four months. He has further submitted that though the statement of the child has been recorded but the trial could not be concluded as on today and the statement of the Investigating Officer has been recorded but his cross-examination has not been done. Learned counsel has stated that this fact has been indicated in para 3 of the counter affidavit that the I.O. is to be crossexamined and for that next date has been fixed for 8.11.2024. However, as per learned counsel for the applicant, on the basis of specific instructions, the

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aforesaid investigating officer has not been crossexamined till date. Therefore, considering the total period of incarceration of the present applicant in jail i.e. more than four years, to be more precise, more than four years and two months, and the fact that despite the specific direction of this Court the trial has not been concluded,` the present applicant may be enlarged on bail.

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Sri Shukla has drawn attention of this Court towards the cross-examination of the prosecutrix wherein there are apparent variation from the prosecution story which started from lodging of the F.I.R. to record the statement u/s 161 and 164 Cr.P.C. Further, the statement of the expert witness i.e. Doctor, who medically examined the prosecutrix at that point of time is also not supporting the prosecution case fully.

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Learned counsel has also submitted that after crossexamination of the investigating officer the required exercise u/s 313 Cr.P.C. would be undertaken and thereafter the defense would be given an opportunity to produce the defense witnesses. After the aforesaid required exercise is undertaken the trial may be fixed for arguments as there is no possibility at this stage to conclude the trial promptly.

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Learned counsel for the applicant has further submitted that there is no likelihood that all prosecution witnesses be examined in days to come and despite the specific order being passed by this Court to conclude the trial within time frame, if the trial is not concluded in a substantial period, it may be considered as a new ground to consider the third bail application. He has further submitted that while considering the bail application, long incarceration in jail may be considered. Learned counsel for the applicant has relied upon the judgments of the Apex Court in re; Union of India vs. K.A. Najeeb reported in AIR 2021 Supreme Court 712 and Paras Ram Vishnoi vs. The Director, Central Bureau of Investigation passed in Criminal Appeal No. 693 of 2021 (Arising out of SLP (Crl) 3610 of 2020) , wherein the Apex Court has held that if there is no possibility to conclude the trial in near future and the accused applicant is in jail for a substantial long period then the period of incarceration may be considered as a fresh ground. Besides, he has referred the dictum of the Hon'ble Apex Court in re; Gokarakonda Naga Saibaba v. State of Maharashtra, (2018) 12 SCC 505 , wherein it has been held that if all fact/ material witnesses have been

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examined, the bail application of the accused may be considered. Learned counsel has submitted that in the present case, almost all fact/ material witnesses have been examined, therefore, the present applicant may be enlarged on bail.

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Learned counsel undertakes on behalf of the applicant that the applicant shall co-operate with the trial proceedings and shall not misuse the liberty of bail, if so granted by this Court. Further, the applicant shall abide by all terms and conditions of the bail order.

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Learned A.G.A. has, however, opposed the prayer for bail but he could not dispute the aforesaid submissions of learned counsel for the applicant. However, learned AGA has submitted that so far as the evidence of prosecutrix as well as doctor has been referred by the learned counsel for the applicant, the same may be tested by the learned trial court on the basis of other witnesses and material available on record.

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Therefore, without entering into merits of the issue; considering the arguments of learned counsel for the parties; the fact that the applicant is in jail for more than four years and two months, despite the specific direction being issued by this Court while rejecting the second bail application on 2.5.2024 to conclude the trial within a period of four months, the trial has not been concluded till date, almost all fact/ material witnesses have been examined and still some prosecution witnesses are to be examined, thereafter the defence witnesses would be examined, the statement of the Investigating Officer has been recorded but his cross-examination has not been done, therefore, there is no possibility to conclude the trial in near future, in view of the dictum of the Apex Court in re; K.A. Najeeb (supra) and Paras Ram Vishnoi (supra) , the present case may be considered to grant bail to the present applicant, the dictum of the Apex Court in re; Gokarakonda Naga Saibaba (supra) is also liable to be considered, which provides that if all fact witnesses and material witnesses have been examined then considering the period of incarceration of the present applicant in jail w.e.f. 20.9.2020, he may be granted bail.

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Accordingly, the bail application is allowed .

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Let applicant- Tunnu @ Sandeep Rawat be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties each in the

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like amount to the satisfaction of the court concerned with the following conditions:-

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(i) The applicant 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 court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

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(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

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(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

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(iv) The applicant 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 Cr.P.C. If in the opinion of the trial court absence of the applicant 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 against him in accordance with law.

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(v) The applicant shall not leave India without previous permission of the court.

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Before parting with, learned trial court is directed to conduct and conclude the trial with expedition and no unnecessary adjournment shall be given to any of the parties.

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[Rajesh Singh Chauhan, J.]

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Order Date :- 26.11.2024 Om

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Digitally signed by :- OM PRAKASH MISHRA High Court of Judicature at Allahabad, Lucknow Bench

Tunnu @ Sandeep Rawat v. State of U.P. Thru. Prin. Secy. Home Lko. and 3 Others

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Tunnu @ Sandeep Rawat v. State of U.P. Thru. Prin. Secy. Home Lko. and 3 Others

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