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IN THE HIGH COURT OF ALLAHABAD
RAJESH SINGH CHAUHAN, J.
Pankaj – Appellant
Versus
State of U.P. and Another – Respondents
Criminal Misc. Bail Application No. 1629 of 2020
Decided On : 13-04-2022
Indian Penal Code, 1860 - Section 174-A 376 and 323 - Criminal Procedure Code, 1973 - Section 313 - Sexual Offences - Bail Application - Punishment for Rape - Applicant is languishing in jail in Case Crime under Section 376 and 323 I.P.C. r/w Section 3/4 of Protection of Children from Sexual Offences Act - He has further submitted that as per prosecution story so narrated in the First Information Report (in short F.I.R.) prosecutrix was said to be a minor girl, aged about 12 years at the time of incident in question, and her radiological age was 16 years - Section 309 Cr.P.C. provides Power to postpone or adjourn proceedings.
Findings of the Court:
Since there is no report that there is any unnecessary delay on the part of the present applicant/defence, rather, the order-sheet reveals that no adjournment has been sought from his side before the learned trial court and it is deliberate delay on the part of the prosecution, resultant thereof, the trial is unnecessary held up, therefore, the benefit thereof should be extended to the present applicant in terms of his right enshrined under Article 21 of the Constitution of India as the fundamental rights enshrined under Article 21 is available to the accused/detenu also. It is also trite that under-trials cannot indefinitely be detained pending trial on the part of the prosecution and the period of incarceration of such accused is long, his/her bail application may be considered - Facts and circumstances of the present case qualifies such test. Besides, the fact that the present applicant is not having any previous criminal history, may also be considered to release him on bail.
Result: Ordered accordingly.
JUDGMENT :
RAJESH SINGH CHAUHAN, J.
1. Heard Sri Ramakar Shukla, learned counsel for the applicant, learned Additional Government Advocate for the State and Ms. Shobha Rajpoot, Advocate holding brief of Sri Shiv Shankar Singh, learned counsel for opposite party no. 2 i.e. the complainant/ informant.
2. Learned Additional Government Advocate has filed counter affidavit, today in the Court, the same is taken on record.
3. Learned counsel for the applicant has filed supplementary affidavit, today in the Court, the same is taken on record. Sri Shukla has also filed certified copy of the F.I.R. and the order-sheet of learned trial court showing the status of trial on various dates, the same are also taken on record.
4. This is the third bail application. The first bail application has been rejected on 26.02.2015 by Hon'ble Surendra Vikram Singh Rathore, J. (since retired). The second bail application has been rejected on 20.09.2017 by Hon'ble Ravindra Nath Mishra-II, J. (since retired).
5. The first bail application of the present applicant was rejected on merits and the second bail application of the applicant was rejected on the ground that no knew facts have been pointed out to consider the second bail application, therefore, such bail application has been rejected.
6. Sri Ramakar Shukla, learned counsel for the applicant has submitted that he is cautious about the fact that while arguing third bail application, he may not raise any ground which could have been taken at the time of arguing the first bail application or the second bail application. Therefore, he is not arguing on merits of the present case. He has submitted that he shall argue the present bail application on the ground that about seven years and eight months period have passed, to be more precise with effect from 17.08.2014 the present applicant is in jail, and there is no possibility to conclude the trial in near future so considering the dictum of Apex Court in catena of cases his period of incarceration may be considered to release him on bail. Further, since the complainant and the prosecutrix have already been examined, therefore, if the present applicant is released on bail there would be no apprehension on his part to influence the star witnesses i.e. the complainant/informant and the prosecutrix.
7. Only for the purpose to apprise the fact in brief Sri Shukla has submitted that the present applicant is languishing in jail since 17.08.2014 in Case Crime No. 417 of 2014, under Section 376 and 323 I.P.C. r/w Section 3/4 of Protection of Children from Sexual Offences Act (in short POCSO), Police Station-Chanda, District-Sultanpur. He has further submitted that as per the prosecution story so narrated in the First Information Report (in short F.I.R.) the prosecutrix was said to be a minor girl, aged about 12 years at the time of incident in question, and her radiological age was 16 years. She had levelled allegations against the present applicant in the statements recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. As per medical examination report, no injury was found on her body and due to some quarrel took place in the year 2012, in the month of August, 2014 when the cattle of the applicant entered into the field of the complainant, the false F.I.R. has been lodged and he has been falsely implicated.
8. Sri Shukla has drawn attention of this Court towards Section 309 Cr.P.C. with its 1st proviso, which reads as under:
(1) In every inquiry or trial the proceedings shall be continued from day-today until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.
Provided that when the inquiry or trial relates to an offence under Section 376, [Section 376-A, Section 376-AB, Section 376-B, Section 376-C, Section 376-D, Section 376-DA or Section 376-DB of the Indian Penal Code (45 of 1860), the inquiry or trial shal
Section 309 Cr.P.C. provides power to postpone or adjourn proceedings.
Grant of Bail - Right of under trial enshrined under Article 21 of the Constitution of India may be considered and protected inasmuch as they should not be compelled to serve maximum punishing.
Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to ju....
The court emphasized the need to balance the individual's right to personal freedom with the right of police investigation, and considered the delay in trial, lack of prima facie evidence, and absenc....
Grant of Bail - Period of incarceration of applicant almost seven years and there are total 15 prosecution witnesses out of them all fact witnesses have been examined and examination of other witness....
Bail – Period of long undertrial detention alone is not a ground to grant bail to accused—Gravity of offence alleged against accused is also a criterion to be considered by Court while deciding bail ....
Point of Law : There is no hard and fast rule regarding grant or refusal to grant bail. Each case has to be considered on facts and circumstances of each case and on its own merits.
Prolonged detention without trial infringes the constitutional right to liberty and a speedy trial, necessitating bail for the accused.
The delay in trial, the seriousness of the offences alleged, and the objections raised by the prosecution and intervenor were key factors in denying bail to the petitioner.
The right to a speedy trial is a fundamental right under Article 21, and undue delays in criminal trials may necessitate the grant of bail to the accused.
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