Vivek Rastogi vs. State Of U.P. And Another

Neutral Citation No. - 2023:AHC:142735 Court No. - 85 Case :- CRIMINAL APPEAL No. - 3963 of 2023 Appellant :- Vivek Rastogi Respondent :- State of U.P. and Another Counsel for Appellant :- Shashi Ranjan Srivastava Counsel for Respondent :- G.A.,Yogesh Kumar Tripathi Hon'ble Mayank Kumar Jain,J. None present for the respondent no.2 even in the revised call. Vide order dated 23.05.2023 two weeks time was granted to learned counsel for the informant to file counter affidavit but the same was not filed yet. Heard learned counsel for the appellant, learned AGA for opposite party no.1 and 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 13.03.2023 whereby the Special Judge, SC/ST Act, Amroha has rejected the bail application of the appellant moved by him in Case Crime No. 814 of 2022, under Sections 376, 506 of IPC and Section 3(2)V SC/ST Act, Police Station Gajraula, District Amroha. As per the FIR the case of the prosecution is that an application under Section 156(3) Cr.P.C. was moved before the court concerned by the prosecutrix making allegation that earlier appellant under the impression of liquor entered in the house of the prosecutrix and threatened her thereafter on 02.11.2022 at around 11.00 pm again appellant entered into the house of the prosecutrix and committed rape with her. On raising alarm one Ajay came there but he was also threatened by the appellant by showing a country made pistol. Learned counsel for the appellants has submitted that appellant is innocent and has been falsely implicated in this case. It is submitted that appellant is innocent and he was never remained a tenant in the house of the prosecutrix. No date and time of the earlier incident is mentioned in the FIR. In the statement of the prosecutrix it is also submitted that after earlier incident no action was taken by the prosecutrix. During her medical examination no sign of physical assault was observed. The witness Ajay named in the FIR has given his affidavit that he did not know the present appellant and prosecutrix and he did not witness any incident. Prosecutrix was also submitted that appellant is a businessman having GST number and files the GSTR which shows that he was never remained a tenant in the house of prosecutrix. It is a case of malicious prosecution under the provisions of S.C./S.T. Act. Applicant is languishing in jail since 09.02.2023 having no criminal history. 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. It appears from the arguments advanced by the counsel for the parties and from perusal of material on record that the court below has not properly considered the case of the appellant. Hence, in view of above consideration, the order of rejection of bail passed by the court below dated 13.03.2023 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; 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 appellants are entitled to be enlarged on bail. Let appellant, Vivek Rastogi 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 :- 18.7.2023 Mohit MOHIT KUMAR KUSHWAHA High Court of Judicature at Allahabad