In Ash Mohammad v. Shiv Raj Singh

1. Shri Nagendra Kumar Mishra, learned A.G.A. submits that the notice of the instant application has been served upon the opposite party no.2/informant on 21.06.2024 and opposite party no.3/C.W.C. on 22.06.2024. The copy of service of notice and the receiving endorsements are collectively annexed as Annexure CA- 1 to the counter affidavit. However, no appears on behalf of the said opposite parties nor any counter affidavit has been filed on their behalf.

2. Heard learned counsel for the applicant, Shri Nagendra Kumar Mishra, learned AGA and Ms. Babita Upadhyay, counsel for respondent no.4. Perused the record.

3. The instant bail application under Section 439 Cr.P.C. has been filed with a prayer to enlarge the applicant on bail in Case Crime No. 375 of 2022, under Sections 392, 376 घ, 34 of I.P.C. and Section 6 POCSO Act, Police Station Husainganj, District Fatehpur, during the pendency of trial.

4. Counsel for the applicant submits that earlier the applicant was granted bail under Sections 380, 411, 307, 323, 504 IPC. Subsequently the charge was framed against the applicant under Sections 392, 376D, 34 I.P.C. and Section 6 of POCSO Act. It is next contended that the victim was wrongly shown as a minor in the prosecution case only to falsely implicate the applicant under the stringent provisions of the POCSO Act and cause his imprisonment. There are material contradictions in the age of the victim as recorded in various documents. The applicant has not been identified as the principal offender who committed rape with the victim. No test identification parade was got conducted by the police authorities. Further, identically placed co-accused Mukeem has been granted bail by this Court vide order dated 01.05.2024 in Criminal Misc. Bail Application No.10341 of 2024. The criminal history of the applicant has been explained in paragraph nos.22 to 36 of the bail application. The applicant is in jail since 05.01.2023 and in case he is enlarged on bail, he will not misuse the said liberty.

5. Learned A.G.A. has opposed the prayer for bail. He submits that the applicant has criminal antecedents.

6. After hearing the rival contentions, this Court prima facie finds that there are material contradictions in the age of the victim as recorded in various documents. The applicant has not been identified as the principal offender who committed rape with the victim. No test identification parade was got conducted by the police authorities. Further, identically placed co-accused Mukeem has been granted bail by this Court vide order dated 01.05.2024.

7. In so far as criminal antecedents of the applicant is concerned, it is not the case of the State that applicant might tamper with or otherwise adversely influence the investigation, or that he might intimidate witnesses before or during the trial. The State has also not placed any cogent material that applicant in past attempted to evade the process of law. In the opinion of this Court, if the accused is otherwise found to be entitled to bail, he cannot be denied bail only on the ground of criminal history, no exceptional circumstances on the basis of criminal antecedents have been shown to deny bail to accused, hence, the Court does not feel it proper to deny bail to the applicant just on the ground that he had criminal antecedent.

8. In Ash Mohammad Vs. Shiv Raj Singh, (2012) 9 SCC 446, the Apex Court in para 30 has observed:- "We may hasten to add that when we state that the accused is a history-sheeter we may not be understood to have said that a history-sheeter is never entitled to bail. But, it is a significant factor to be taken note of regard being had to the nature of crime in respect of which he has been booked."

9. In the case of Prabhakar Tewari Vs. State of U.P. and another, 2020 (11) SCC 648, the Hon'ble Supreme Court has observed that pendency of several criminal cases against an accused may itself cannot be a basis for refusal of bail.

10. The principle that Bail is a rule and Jail is an exception has been well recognized by Apex Court more specifically on the touch stone of Article 21 of the Constitution. The said principle has been reiterated by the Apex Court in Satyendra Kumar Antil Vs. Central Bureau of Investigation and another, 2022 (10) SCC 51.

11. It is settled principle of law that the object of bail is to secure the attendance of the accused at the trial. Learned A.G.A. for the State has not shown any material or circumstances that the accused/applicant is not entitled to bail in larger interest of the public or State.

12. Further, the applicant has remained confined for more than two years, there is no hope of early conclusion of trial and without commenting on the merits of the case, I am of the opinion that the applicant is entitled to be enlarged on bail.

13. Let the applicant- Kunnu @ Abimanyu Singh, involved in the aforesaid case be released on bail on his furnishing a personal bond and two heavy sureties (in view of criminal history) each in the like amount to the satisfaction of the court concerned subject to conditions that he: (i) shall appear on the date fixed by the trial court; (ii) shall not tamper with the prosecution evidence; (iii) shall not pressurize the prosecution witnesses.

14. In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court. Order Date :- 10.2.2025 Manish Kr MANISH KUMAR MANISH KUMAR High Court of Judicature at Allahabad High Court of Judicature at Allahabad

1. Shri Nagendra Kumar Mishra, learned A.G.A. submits that the notice of the instant application has been served upon the opposite party no.2/informant on 21.06.2024 and opposite party no.3/C.W.C. on 22.06.2024. The copy of service of notice and the receiving endorsements are collectively annexed as Annexure CA- 1 to the counter affidavit. However, no appears on behalf of the said opposite parties nor any counter affidavit has been filed on their behalf.

2. Heard learned counsel for the applicant, Shri Nagendra Kumar Mishra, learned AGA and Ms. Babita Upadhyay, counsel for respondent no.4. Perused the record.

3. The instant bail application under Section 439 Cr.P.C. has been filed with a prayer to enlarge the applicant on bail in Case Crime No. 375 of 2022, under Sections 392, 376 घ, 34 of I.P.C. and Section 6 POCSO Act, Police Station Husainganj, District Fatehpur, during the pendency of trial.

4. Counsel for the applicant submits that earlier the applicant was granted bail under Sections 380, 411, 307, 323, 504 IPC. Subsequently the charge was framed against the applicant under Sections 392, 376D, 34 I.P.C. and Section 6 of POCSO Act. It is next contended that the victim was wrongly shown as a minor in the prosecution case only to falsely implicate the applicant under the stringent provisions of the POCSO Act and cause his imprisonment. There are material contradictions in the age of the victim as recorded in various documents. The applicant has not been identified as the principal offender who committed rape with the victim. No test identification parade was got conducted by the police authorities. Further, identically placed co-accused Mukeem has been granted bail by this Court vide order dated 01.05.2024 in Criminal Misc. Bail Application No.10341 of 2024. The criminal history of the applicant has been explained in paragraph nos.22 to 36 of the bail application. The applicant is in jail since 05.01.2023 and in case he is enlarged on bail, he will not misuse the said liberty.

5. Learned A.G.A. has opposed the prayer for bail. He submits that the applicant has criminal antecedents.

6. After hearing the rival contentions, this Court prima facie finds that there are material contradictions in the age of the victim as recorded in various documents. The applicant has not been identified as the principal offender who committed rape with the victim. No test identification parade was got conducted by the police authorities. Further, identically placed co-accused Mukeem has been granted bail by this Court vide order dated 01.05.2024.

7. In so far as criminal antecedents of the applicant is concerned, it is not the case of the State that applicant might tamper with or otherwise adversely influence the investigation, or that he might intimidate witnesses before or during the trial. The State has also not placed any cogent material that applicant in past attempted to evade the process of law. In the opinion of this Court, if the accused is otherwise found to be entitled to bail, he cannot be denied bail only on the ground of criminal history, no exceptional circumstances on the basis of criminal antecedents have been shown to deny bail to accused, hence, the Court does not feel it proper to deny bail to the applicant just on the ground that he had criminal antecedent.

8. In Ash Mohammad Vs. Shiv Raj Singh, (2012) 9 SCC 446, the Apex Court in para 30 has observed:- "We may hasten to add that when we state that the accused is a history-sheeter we may not be understood to have said that a history-sheeter is never entitled to bail. But, it is a significant factor to be taken note of regard being had to the nature of crime in respect of which he has been booked."

9. In the case of Prabhakar Tewari Vs. State of U.P. and another, 2020 (11) SCC 648, the Hon'ble Supreme Court has observed that pendency of several criminal cases against an accused may itself cannot be a basis for refusal of bail.

10. The principle that Bail is a rule and Jail is an exception has been well recognized by Apex Court more specifically on the touch stone of Article 21 of the Constitution. The said principle has been reiterated by the Apex Court in Satyendra Kumar Antil Vs. Central Bureau of Investigation and another, 2022 (10) SCC 51.

11. It is settled principle of law that the object of bail is to secure the attendance of the accused at the trial. Learned A.G.A. for the State has not shown any material or circumstances that the accused/applicant is not entitled to bail in larger interest of the public or State.

12. Further, the applicant has remained confined for more than two years, there is no hope of early conclusion of trial and without commenting on the merits of the case, I am of the opinion that the applicant is entitled to be enlarged on bail.

13. Let the applicant- Kunnu @ Abimanyu Singh, involved in the aforesaid case be released on bail on his furnishing a personal bond and two heavy sureties (in view of criminal history) each in the like amount to the satisfaction of the court concerned subject to conditions that he: (i) shall appear on the date fixed by the trial court; (ii) shall not tamper with the prosecution evidence; (iii) shall not pressurize the prosecution witnesses.

14. In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court. Order Date :- 10.2.2025 Manish Kr MANISH KUMAR MANISH KUMAR High Court of Judicature at Allahabad High Court of Judicature at Allahabad