HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW CRIMINAL APPEAL No. - 1179 of 2023 Court No. - 11 HON'BLE SAURABH LAVANIA, J. 1. Heard Shri Ishan Baghel, Advocate assisted by Shri Shourya Parmar, learned counsel for the appellant, learned A.G.A. for the State-respondent and learned counsel appearing for the respondent nos. 4 and 5. 2. The present appeal has been filed under Section 14-A (2) of Scheduled Castes and Scheduled Tribes Act, 1989 (in short "Act of 1989") against the impugned order dated 21.03.2023 passed by Special Judge, POCSO Act, Gonda in Bail Application No. 498 of 2023 arising out of Case Crime No. 828 of 2022, under Sections 376, 305, 354, 323, 504, 506, 452 IPC, Sections 7/8 POCSO Act and Section 3(2)5 of Act of 1989, P.S. Kotwali Nagar, District - Gonda. 3. Pressing the present appeal and impeaching the order, under appeal, dated 21.03.2023, it is stated that the appellant is in jail since 18.11.2022 and the period of incarceration of the appellant is about thirty-five months (35 months). 4. Learned counsel for the appellant has submitted that incarceration period is much higher in the present case and in view of law laid down by Hon'ble Supreme Court in the case of Union of India Vs. K.A. Najeeb reported in AIR 2021 SCC 712 and Paras Ram Vishnoi. Vs. The Director General Versus Counsel for Appellant(s) : Alok Kr. Misra, Avinash Dhar Dwivedi, Sachin Srivastava, Shourya Parmar, Utkarsh Kumar Counsel for Respondent(s) : G.A., Himanshu Tiwari, Km. Deepa, Manjari Singh, Vedika Dwivedi, Vikrant Prakash Mohd. Jainul Aabdeen .....Appellant(s) State Of U.P. Thru. Addl. Chief Secy. Home, Lko. And 4 Others .....Respondent(s) Bureau of Investigation, passed in Criminal Appeal No.693 of 2021 (Arising out of SLP (Crl.) 3610 of 2020), the bail can be granted to those accused persons on the ground that there is no possibility to conclude the trial in near future and there is a long incarceration period of that accused. Relevant para-16 of the case of K.A. Najeeb (supra) is quoted below:- "This 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 justice and a speedy trial. In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail." 5. In the case of Paras Ram Vishnoi (supra), the Apex Court has observed regarding point of incarceration period and delay in trial. The relevant part of the said judgment is quoted below:- "On consideration of the matter, we are of the view that pending the trial we cannot keep a person in custody for an indefinite period of time and taking into consideration the period of custody and that the other accused are yet to lead defence evidence while the appellant has already stated he does not propose to lead any evidence, we are inclined to grant bail to the appellant on terms and conditions to the satisfaction of the trial court." 6. It is further stated that to support the allegations to attract the offense under Section 376 IPC there is no medical evidence. 7. It is also stated that in fact the case of prosecution with regard to other offences including the offense under Section 305 IPC would not be CRLA No. 1179 of 2023 2 established in trial. 8. It is also stated that it would be apt to release the appellant on bail as on being released he would be in a better position to assist his counsel to defend his case. 9. Thus, indulgence of this Court is required and as such, the appellant, who is in jail since 18.11.2022 and has having no criminal history, is entitled for bail and the impugned order is liable to be set aside and the appeal is liable to be allowed. 10. Learned A.G.A. for the State-respondent and learned counsel appearing for the respondent nos. 4 and 5 vehemently opposed the prayer of the appellant. However, they could not dispute the above contentions made by the appellant's counsel. 11. Considered the arguments advanced by the learned counsel for the appellant-applicant, learned A.G.A., learned counsel for respondent nos. 4 & 5 and gone through the contents of the appeal, impugned order, F.I.R., medical report as well as statement of the witnesses recorded in terms of Sections 161 and 164 Cr.P.C. 12. Considering the rival submissions of learned counsel for parties, material available on record and period of incarceration i.e. about 35 months as also that chances of conclusion of trial in near future and the submission of counsel for the appellant to the effect that while on bail in this case, the appellant would not commit any crime/offense nor he would try to tamper the evidence or influence the witnesses in any manner whatsoever it may be and also that while on bail the appellant would be in better position to assist his counsel to defend his case and without expressing any opinion on the merits of the case, this Court finds force in the argument of the appeal and it is accordingly, allowed. 13. The order dated 21.03.2023 passed by Special Judge, POCSO Act, Gonda in Bail Application No. 498 of 2023 arising out of Case Crime No. 828 of 2022, under Sections 376, 305, 354, 323, 504, 506, 452 IPC, Sections 7/8 POCSO Act and Section 3(2)5 of Act of 1989, P.S. Kotwali Nagar, District - Gonda is set aside. CRLA No. 1179 of 2023 3 14. Let appellant Mohd. Jainul Aabdeen , be released on bail in the aforesaid case crime number on his furnishing personal bond of Rs. 25,000/- and two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following additional conditions :- (i) The appellant will cooperate with the prosecution during trial. (ii) The appellant will not tamper with the evidence during trial. (iii) The appellant will not pressurize/intimidate the prosecution witness(es). (iv) The appellant shall not commit an offence. (v) 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. (vi) The appellant shall remain present before the trial court on each date fixed, either personally or through counsel. (vii) The appellant will not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. (viii) The appellant shall remain present, in person, before the trial court on the dates fixed for recording of statement under Section 313 Cr.P.C./Section 351 BNSS. 15. In case of default of above conditions, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law 16. As this order relates to enlargement of the appellant on bail, it is clarified that observations made in this order shall have no bearing on the merits of the case and the trial court shall not be influenced by any observation made in this order. September 26, 2025 Mohit Singh/- CRLA No. 1179 of 2023 4 (Saurabh Lavania,J.) Digitally signed by :- MOHIT SINGH High Court of Judicature at Allahabad, Lucknow Bench