Kapil Awasthi @ Chhotu vs State of U.P. Thru. Prin. Secy. Home and 3 Others

A prayer for bail has been made by the appellant in this criminal appeal, which has been filed against the judgement and orders dated 15.12.2023 passed by H.J.S., Additional Sessions Judge/ Special Court under the POCSO Act, District-Sultanpur in Special Trial No.812/2022 arising out of Crime No.71/2022, under Sections 452/376/506 IPC and Section 3/4 POCSO Act, Police Station-Bazar Shukl, DistrictAmethi.

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The submissions of learned counsel for the appellants/applicants is that the appellant is innocent and has been falsely been implicated in the case.

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While pressing the present appeal, learned counsel for the appellant submitted that the appellant is languishing in jail since 15.12.2023, which is the date of judgment under appeal and in this view of the matter period of incarceration comes to around two years after conviction and before to the same the accused was in jail for a period of one year as he was sent to jail on 27.04.2022 and was released on bail vide order dated 24.04.2023, for committing no offence.

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In continuation it is stated that as per medical opinion victim at the time of incident, was 16 years old and as per school record the victim was of about 15 years old.

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It is further stated that according to the case set up by the prosecution some injuries ought to have been sustained by the victim. However, a perusal of medical report annexed at page 64 to 71, indicates that prosecutrix/victim sustained no injury (either on external or internal part) and despite this the trial court treating the statement of the prosecutrix/victim as gospel truth passed the judgment under appeal and as such appellant has full hope of success in the present appeal.

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It is further submitted that chances of final hearing in the instant appeal in near future are extremely bleak, as such, taking note of the period of incarceration i.e. more than two and a half year and also other aspects of the case, the appellant is entitled to be released on bail.

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The Hon'ble Apex Court in the case of Dinesh Kumar Sinha Vs. State of Jharkhand, (2009) 6 SCC 628 has granted bail in pending appeal on the ground that the accused has undergone half of the sentence and there is no possibility of early hearing of the appeal.

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In Bhagwan Rama Shinde Gosai and others Vs. State of Gujarat, (1999) 4 SCC 421 , the Apex Court has observed as under :-

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"3. When a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. Of course, if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach. But if for any reason the sentence of a limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when a motion for expeditious hearing of the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise of futility by efflux of time. When the appellate court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate court bestow special concern in the matter of suspending of sentence, so as to make the appeal right, meaningful and effective. Of course, appellate courts can impose similar conditions when bail is granted."

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Similarly, the Supreme Court in Ramnik Singh Vs. Intelligence Officer, Directorate of Revenue Intelligence, 2013 SCC Online SC 1276 has released the convict considering the custody certificate and that the convict has already undergone half of the sentence imposed and the possibility of appeal being taken up in near future is remote and as such, has entitled the convict for suspension of sentence during pendency of appeal.

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In Saudan Singh Vs. State of U.P. vide order dated 05.10.2021 in Special Leave to Appeal (Criminal) No.4633 of 2021 , the Apex Court has observed:-

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"We may note that there may be even convicts in custody in cases other than life sentence cases and in those cases again the broad parameter of 50 per cent of the actual sentence undergone can be the basis for grant of bail."

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The Hon'ble Apex Court in the case of Satender Kumar Antil v. CBI, (2022) 10 SCC 51 has held that the delay in taking up the main appeal, coupled with the benefit conferred with Section 436A Cr.P.C. among other factors are to be considered for favourable release on bail.

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"53.Surinder Singh v. State of Punjab [Surinder Singh v. State of Punjab, (2005) 7 SCC 387 : 2005 SCC (Cri) 1674] : (SCC pp. 390-92, paras 8-10)

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“8. It is no doubt true that this Court has repeatedly emphasised the fact that speedy trial is a fundamental right implicit in the broad sweep and content of Article 21 of the Constitution. The aforesaid article confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law. If a person is deprived of his liberty under a procedure which is not reasonable, fair, or just, such deprivation would be violative of his fundamental right under Article 21 of the Constitution. It has also been emphasised by this Court that the procedure so prescribed must ensure a speedy trial for determination of the guilt of such person. It is conceded that some amount of deprivation of personal liberty cannot be avoided, but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. These are observations made in several decisions of this Court dealing with the subject of speedy trial. In this case, we are concerned with the case where a person has been found guilty of an offence punishable under Section 302IPC and who has been

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sentenced to imprisonment for life. The Code of Criminal Procedure affords a right of appeal to such a convict. The difficulty arises when the appeal preferred by such a convict cannot be disposed of within a reasonable time. In Kashmira Singh v. State of Punjab [Kashmira Singh v. State of Punjab, (1977) 4 SCC 291 : 1977 SCC (Cri) 559] this Court dealt with such a case. It is observed : (SCC pp. 292-93, para 2)

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‘2. … The practice not to release on bail a person who has been sentenced to life imprisonment was evolved in the High Courts and in this Court on the basis that once a person has been found guilty and sentenced to life imprisonment, he should not be let loose, so long as his conviction and sentence are not set aside, but the underlying postulate of this practice was that the appeal of such person would be disposed of within a measurable distance of time, so that if he is ultimately found to be innocent, he would not have to remain in jail for an unduly long period. The rationale of this practice can have no application where the court is not in a position to dispose of the appeal for five or six years. It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him. Can the court ever compensate him for his incarceration which is found to be unjustified? Would it be just at all for the court to tell a person:“We have admitted your appeal because we think you have a prima facie case, but unfortunately we have no time to hear your appeal for quite a few years and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent?” What confidence would such administration of justice inspire in the mind of the public? It may quite conceivably happen, and it has in fact happened in a few cases in this Court, that a person may serve out his full term of imprisonment before his appeal is taken up for hearing. Would a judge not be overwhelmed with a feeling of contrition while acquitting such a person after hearing the appeal? Would it not be an affront to his sense of justice? Of what avail would the acquittal be to such a person who has already served out his term of imprisonment or at any rate a major part of it? It is, therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this Court is not in a position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and sentence.’

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9. Similar observations are found in some of the other decisions of this Court which have been brought to our notice. But, however, it is significant to note that all these decisions only lay down broad guidelines which the courts must bear in mind while dealing with an application for grant of bail to an appellant before the court. None of the decisions lay down any invariable rule for grant of bail on completion of a specified period of detention in custody. Indeed in a discretionary matter, like grant or refusal of bail, it would be impossible to lay down any invariable rule or evolve a straitjacket formula. The court must exercise its discretion having regard to all the relevant facts and circumstances. What the relevant facts and circumstances are, which the court must keep in mind, has been laid down over the years by the courts in this country in a large number of decisions which are well known. It is, therefore, futile to attempt to lay down any invariable rule or formula in such matters.

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10. The counsel for the parties submitted before us that though it has been so understood by the courts in Punjab, the decision of the Punjab and Haryana High Court in Dharam Pal case [Dharam Pal v. State of Haryana, 1999 SCC OnLine P&H 925 : (2000) 1 Chan LR 74] only lays down guidelines and not any invariable rule. Unfortunately, the decision has been misunderstood by the Court in view of the manner in which the principles have been couched in the aforesaid judgment. After considering the various decisions of this Court and the difficulties faced by the courts, the High Court in Dharam Pal case [Dharam Pal v. State of Haryana, 1999 SCC OnLine P&H 925 : (2000) 1 Chan LR 74] observed : (SCC OnLine P&H para 18)

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‘18. … We, therefore, direct that life convicts, who have undergone at least five years of imprisonment of which at least three years should be after conviction, should be released on bail pending the hearing of their appeals should they make an application for this purpose. We are also of the opinion that the same principles ought to apply to those

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convicted by the courts martial and such prisoners should also be entitled to release after seeking a suspension of their sentences. We further direct that the period of five years would be reduced to four for females and minors, with at least two years imprisonment after conviction. We, however, clarify that these directions shall not be applicable in cases where the very grant of bail is forbidden by law.”

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54.Section 389 of the Code

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“389. Suspension of sentence pending the appeal; release of appellant on bail. —(1) Pending any appeal by a convicted person, the appellate court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. Provided that the appellate court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:

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Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.

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(2) The power conferred by this section on an appellate court may be exercised also by the High Court in the case of an appeal by a convicted person to a court subordinate thereto.

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(3) Where the convicted person satisfies the court by which he is convicted that he intends to present an appeal, the court shall—

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(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or

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(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail,

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order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the appellate court under sub-section (1), and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

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(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.”

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55. Section 389 of the Code concerns itself with circumstances pending appeal leading to the release of the appellant on bail. The power exercisable under Section 389 is different from that of the one either under Section 437 or under Section 439 of the Code, pending trial. This is for the reason that “presumption of innocence” and “bail is the rule and jail is the exception” may not be available to the appellant who has suffered a conviction. A mere pendency of an appeal per se would not be a factor.

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56. A suspension of sentence is an act of keeping the sentence in abeyance, pending the final adjudication. Though delay in taking up the main appeal would certainly be a factor and the benefit available under Section 436-A would also be considered, the courts will have to see the relevant factors including the conviction rendered by the trial court. When it is so apparent that the appeals are not likely to be taken up and disposed of, then the delay would certainly be a factor in favour of the appellant.

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57. Thus, we hold that the delay in taking up the main appeal or revision coupled with the benefit conferred under Section 436-A of the Code among other factors ought to be considered for a favourable release on bail.

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Precedents

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58. Atul Tripathi v. State of U.P. [Atul Tripathi v. State of U.P., (2014) 9 SCC 177 : (2014) 6 SCC (Cri) 19] : (SCC pp. 183-84, paras 13-14)

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“13. It may be seen that there is a marked difference between the procedure for consideration of bail under Section 439, which is pre-conviction stage and Section 389CrPC, which is post-conviction stage. In case of Section 439, the Code provides that only notice to the Public Prosecutor unless impractical be given before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or where the punishment for the offence is imprisonment for life; whereas in the case of postconviction bail under Section 389CrPC, where the conviction in respect of a serious offence having punishment with death or life imprisonment or imprisonment for a term not less than ten years, it is mandatory that the appellate court gives an opportunity to the Public Prosecutor for showing cause in writing against such release.

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14. … in case the appellate court is inclined to consider the release of the convict on bail, the Public Prosecutor shall be granted an opportunity to show cause in writing as to why the appellant be not released on bail. Such a stringent provision is introduced only to ensure that the court is apprised of all the relevant factors so that the court may consider whether it is an appropriate case for release having regard to the manner in which the crime is committed, gravity of the offence, age, criminal antecedents of the convict, impact on public confidence in the justice-delivery system, etc. Despite such an opportunity being granted to the Public Prosecutor, in case no cause is shown in writing, the appellate court shall record that the State has not filed any objection in writing. This procedure is intended to ensure transparency, to ensure that there is no allegation of collusion and to ensure that the court is properly assisted by the State with true and correct facts with regard to the relevant considerations for grant of bail in respect of serious offences, at the postconviction stage.”

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59. Angana v. State of Rajasthan [Angana v. State of Rajasthan, (2009) 3 SCC 767 : (2009) 2 SCC (Cri) 742] : (SCC p. 771, para 14)

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“14. When an appeal is preferred against conviction in the High Court, the Court has ample power and discretion to suspend the sentence, but that discretion has to be exercised judiciously depending on the facts and circumstances of each case. While considering the suspension of sentence, each case is to be considered on the basis of nature of the offence, manner in which occurrence had taken place, whether in any manner bail granted earlier had been misused. In fact, there is no straitjacket formula which can be applied in exercising the discretion. The facts and circumstances of each case will govern the exercise of judicial discretion while considering the application filed by the convict under Section 389 of the Criminal Procedure Code.”

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60. Sunil Kumar v. Vipin Kumar [Sunil Kumar v. Vipin Kumar, (2014) 8 SCC 868 : (2014) 6 SCC (Cri) 146] : (SCC p. 871, paras 13-14)

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“13. We have heard the rival legal contentions raised by both the parties. We are of the opinion that the High Court [Vipin Kumar v. State of U.P., 2013 SCC OnLine All 12976] has rightly applied its discretionary power under Section 389CrPC to enlarge the respondents on bail. Firstly, both the criminal appeal and criminal revision filed by both the parties are pending before the High Court which means that the convictions of the respondents are not confirmed by the appellate court. Secondly, it is an admitted fact that the respondents had been granted bail earlier and they did not misuse the liberty. Also, the respondents had conceded to the occurrence of the incident though with a different version.

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14. We are of the opinion that the High Court has taken into consideration all the relevant facts including the fact that the chance of the appeal being heard in the near future is extremely remote, hence, the High Court has released the respondents on bail on the basis of sound legal reasoning. We do not wish to interfere with the decision of the High Court at this stage. The appeal is dismissed accordingly.”

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Further submission is that taking note of the period of incarceration i.e. more than two and a half years, the appellant is entitled to be released on bail.

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Learned A.G.A. vehemently opposed the prayer for bail and submitted that the court below has passed the impugned order after considering the evidence placed

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before it at the time of trial and there is no illegality in the same. However, he does not dispute the dispute the period of incarceration of the appellant.

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Considering the arguments advanced by the learned counsel for the appellant, learned A.G.A. and the judgment of the trial court as also the period of incarceration of the appellant also the fact that the chances of final hearing in this appeal in near future are bleak as well as taking note of the judgments, referred above, as also medical opinion, this Court is of the view that it would be appropriate to suspend the sentence of the applicant/appellant and to grant bail to the applicant/appellant till the outcome of the instant appeal.

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Accordingly, the bail application is allowed . The sentence imposed by the trial court shall remain suspended during pendency of present appeal.

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Let the applicant-appellant- Kapil Awasthi alias Chhotu involved in aforesaid Case Crime Number be released on bail on depositing the complete amount of fine within a period of one month from the date of his release from prison and furnishing personal bond of Rs.25,000/- and two sureties each in the like amount, subject to following conditions:

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(i) The appellant shall cooperate in the early disposal of appeal without seeking unnecessary adjournment.

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(ii) The appellant shall not indulge in any criminal activity or commission of any crime after being released on bail.

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It is further directed that the realization of 50% of the fine amount awarded to the appellant shall remain stayed during the pendency of this appeal.

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It is further directed that the appellant shall deposit the rest 50% of the fine amount within two months from the date of release.

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As soon as personal bonds and sureties are furnished, photocopies of the same are directed to be transmitted to this Court forthwith by the trial court concerned to be kept on record of this appeal.

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In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

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November 21, 2025 Jyoti/-

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(Saurabh Lavania,J.)

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Digitally signed by :- JYOTI RAJWANI High Court of Judicature at Allahabad, Lucknow Bench

Kapil Awasthi @ Chhotu v. State of U.P. Thru. Prin. Secy. Home and 3 Others

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Kapil Awasthi @ Chhotu v. State of U.P. Thru. Prin. Secy. Home and 3 Others

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