Neutral Citation No. - 2025:AHC:81616 Court No. - 47 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31538 of 2024 Applicant :- Kalu Opposite Party :- State of U.P. Counsel for Applicant :- Anjani Kumar,Satish Kumar Tyagi Counsel for Opposite Party :- G.A. Hon'ble Siddharth,J. Compliance affidavit filed by learned AGA is taken on record. Heard Sri Satish Kumar Tyagi and Sri Gaurav Tewari, learned counsel for the applicant and learned A.G.A. for the State. There are allegations against the applicant that he has committed offence of rape and criminal intimidation against the daughter of informant aged about 24 years. It is alleged in the first information report that the victim is mentally retarded. On 2.5.2025 learned AGA was granted time to file statement of the victim recorded under Section 164 Cr.P.C with help of expert and certificate of the Doctor regarding disability of victim, if any. Today a counter affidavit has been filed by learned AGA wherein statement of the victim recorded under Section 164 Cr.P.C. has been brought on record. It is clear from the statement that it has not been recorded as per Section 164 (5-A) Cr.P.C with the help of an expert or Special Educator when certificate of mental disability has been filed. Learned counsel for the applicant submits that compliance of Section 164(5- A) Cr.P.C a mandatory provision has not been made in this case by the prosecution. Applicant is in jail since 14.03.2024. Trial has not been concluded. He has no previous criminal history to his credit. Learned AGA has opposed the prayer for bail but could not dispute the above submissions. Keeping in view the nature of the offence, evidence, complicity of the accused; submissions of the learned counsel for the parties noted above; finding force in the submissions made by the learned counsel for the applicant; keeping view the uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under trial having fundamental right to speedy trial; larger mandate of the Article 21 of the Constitution of India and recent judgment dated 11.07.2022 of the Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021 and considering 5-6 times overcrowding in jails over and above their capacity by the under trials and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed. Let the applicant, Kalu, involved in Case Crime No.169 of 2024, under Sections 376(L), 506 I.P.C, Police Station Modi Nagar, District- Ghaziabad be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified. (i) The applicant shall not tamper with the evidence or threaten the witnesses. (ii) The applicant 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 Court. In case of default of this condition, it shall be open for the Trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law. (iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code. (iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail to appear before the Court on the date fixed in such proclamation then the Trial Court shall initiate proceedings against him in accordance with law under Section 174-A of the Indian Penal Code. (v) The applicant 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 Cr.P.C. 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, the complainant is free to move an application for cancellation of bail before this court. Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted. The trial court is directed to conclude the trial against the applicant as expeditiously as possible as per section 346 B.N.S.S. Order Date :- 16.5.2025 SS Digitally signed by :- SURENDER SINGH NARANG High Court of Judicature at Allahabad