Hariom Kushwaha v. State Of U.P. And 3 Others

Heard Sri Raja Sahani, learned counsel for the applicant as well as Sri R.P. Patel, learned State Law Officer and perused the material placed on record.

Applicant seeks bail in Case Crime No. 907 of 2024, U/S 137(2), 352, 351(2), 87, 64 B.N.S. and 3/4 POCSO Act, Police Station Kotwali, District Deoria, during the pendency of trial.

Learned counsel for the applicant has argued that the applicant is absolutely innocent and has been falsely implicated in the present case with a view to cause unnecessary harassment and to victimize him. It is stated that he has nothing to do with the said offence.

It is further stated that as per the ossification test report, her age is 18 years. It is stated that the victim is the consenting party, as is evident from her statement recorded u/s 183 B.N.S.S. She is stated to have married the applicant and started living with him at Surat, Gujarat. She has expressed her willingness to live with him in future also.

Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length.

There is no criminal history of the applicant. The applicant is languishing in jail since 21.10.2024. In case, the applicant is released on bail, he will not misuse the liberty of bail.

Learned State Law Officer has vehemently opposed the bail application but has not disputed the fact that there is no criminal history of the applicant and the aforesaid submissions of learned counsel for the applicant.

In the judgement of Supreme Court passed in Jaya Mala Vs. State of J & K, (1982) 2 SCC 538 and Mohd. Imran Khan vs. State (Govt. of NCT of Delhi), (2011) 10 SCC 192, it has been opined that the radiologist cannot predict the correct date of birth rather there is a long margin of 1 to 2 years on either side.

The well-known principle of "Presumption of Innocence Unless Proven Guilty," gives rise to the concept of bail as a rule and imprisonment as an exception.

A person's right to life and liberty, guaranteed by Article 21 of the Indian Constitution, cannot be taken away simply because the person is accused of committing an offence until the guilt is established beyond a reasonable doubt. Article 21 of the Indian Constitution states that no one's life or personal liberty may be taken away unless the procedure established by law is followed, and the procedure must be just and reasonable. The said principle has been recapitulated by the Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation and Ors., 2022 INSC 690.

Reiterating the aforesaid view the Supreme Court in the case of Manish Sisodia Vs. Directorate of Enforcement 2024 INSC 595 has again emphasized that the very well-settled principle of law that bail is not to be withheld as a punishment is not to be forgotten. It is high time that the Courts should recognize the principle that “bail is a rule and jail is an exception”.

Learned State Law Officer could not bring forth any exceptional circumstances which would warrant denial of bail to the applicant.

It is settled principle of law that the object of bail is to secure the attendance of the accused at the trial. No material particulars or circumstances suggestive of the applicant fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like have been shown by learned State Law Officer.

Let the applicant- involved in aforementioned case crime number be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. (i) The applicant shall not tamper with evidence. (ii) The applicant shall remain present, in person, before the Trial Court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C./351 B.N.S.S. 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.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses. Order Date :- 19.2.2025 Shalini (Justice Krishan Pahal) SHALINI JAISWAL High Court of Judicature at Allahabad