Pankaj Kashyap vs State of U.P.

Vijay Kumar Verma, J.—Heard Sri Yashwant Singh, advocate appearing for the applicant and A.G.A. for the State and also perused the entire material on record.

An F.I.R. was lodged on 10.7.2007 at P. S. Baradari, Bareilly impleading the applicant as accused. The said F.I.R. was lodged by Mohd. Mian /o Babban Mian.

The allegations made in the F.I.R., in brief, are that the applicant Pankaj Kashyap committed unnatural offence (sodomy) on Razat alias Mohd. Ali, aged about 10-11 years, son of complainant.

It is submitted by learned Counsel for the applicant that due to dispute of tenancy, the applicant has been falsely implicated in this case and no such incident as alleged in the F.I.R. had occurred. Next submission is that the applicant was also minor at the time of alleged incident and hence, on the ground of being juvenile, the applicant deserves bail. Last submission made by the learned Counsel is that the applicant is in jail since 11.7.2007 and hence on the ground of long incarceration in jail, he deserves bail now, as due to delay in trial, his fundamental right of speedy trial envisaged under Article 21 of the Constitution is being violated.

The bail has been opposed by the learned A.G.A. on the ground that at the time of medical examination of the victim, injuries were found on his private part and the victim has supported the F.I.R. version in his statement recorded u/s 161, Cr. P.C. and, hence, in this heinous crime, the applicant should not be admitted to bail.

So far as the plea of applicant being juvenile is concerned, the applicant has not filed any document to show that the age of the applicant was below eighteen years on the date of offence. If the applicant was below eighteen years on the date of offence as contended now then, this plea can be taken in the trial court. If such plea is taken, inquiry may be made by the trial court concerned regarding age of the applicant and if the applicant is found below eighteen years on the date of offence, then he may move fresh bail application on this ground, which shall be considered in accordance with the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000.

Annexure-2 is the copy of the medical report of the victim, who was medically examined on 10.7.2007. This report shows that injuries were found on private part (anus) of the victim. In his statement recorded u/s 161, Cr. P.C., the victim has supported the case of the prosecution. Therefore, having regard to all these facts, but without expressing any opinion on merit, in this heinous crime, the applicant does not deserve bail.

In my considered opinion, on the basis of the long incarceration in jail also, the applicant cannot be admitted to bail in this heinous crime of unnatural offence. In this context, reference may be made to the case of Pramod Kumar Saxena v. Union of India and others LXIII 2008 ACC 115: 2008 (3) ACR 3216 (SC), in which the Hon''ble Apex Court has held that mere long period of incarceration in jail would not be per se illegal. If the accused has committed offence, he has to remain behind bars. Such detention in jail even as an under-trial prisoner would not be violative of Article 21 of the Constitution.

Consequently, the bail prayer of the applicant Pankaj Kashyap is hereby rejected.

The trial court is directed to conclude the trial of the applicant within a period of six months appying the provisions of Section 309, Cr. P.C. by making sincere efforts and avoiding unnecessary adjournments.

Office is directed to send a copy of this order within a week to the trial court concerned for necessary action.