JUDGMENT : 1. Heard Shri Suhail Kashif along with Shri Sudhir Kumar, the learned counsels for the appellant as well as Shri Ashok Kumar Singh, the learned A.G.A. for the State-opposite party No. 1 and perused the entire record. 2. This Court vide order dated 19.07.2022 while issuing notice to the opposite party No. 1 has already granted time to the learned A.G.A. to file counter affidavit. 3. As per the office report dated 03.08.2022 notice has already been served upon the opposite party No. 2 but till date neither any counsel has appeared on behalf of opposite party No. 2 nor counter affidavit has been filed on her behalf. Even no counter affidavit has been filed on behalf of State till date. It appears that learned A.G.A. as well as opposite party No. 2 are not interested to file any counter affidavit. 4. In the above circumstances, as the matter pertains to bail this Court has no option but to proceed for final arguments to decide the present appeal. 5. The present criminal appeal under Section 14-A (2) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned orders dated 05.05.2022 and 05.07.2022 passed by the court of learned Special Judge (S.C./S.T. Act), Barabanki in Bail Application No. 1008 of 2022 (Dhirendra vs. State of U.P.), arising out of Case Crime No. 86 of 2022, under Sections 376-D, 506 I.P.C. read with Section 3(2)(V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and Section 67-A of I.T. (Amendment) Act and Bail Application No. 1639 of 2022 (Dhirendra Vs. State of U.P.), arising out of Case Crime No. 86 of 2022, under Section 66-E of I.T. (Amendment) Act, relating to Police Station-Jaidpur, District-Barabanki, respectively, whereby the both the bail applications of the appellant have been rejected. 6. Learned counsel for the appellant submits that the F.I.R. was lodged under Sections 376-D, 506 I.P.C. read with Section 3(2)(V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and Section 67-A of I.T. (Amendment) Act against three persons including the present appellant, which too, after an inordinate delay without explaining the delay. The charge sheet was filed against all the accused persons. 7. The charge sheet was filed against all the accused persons. 7. Learned counsel for the appellant further submits that against the present appellant there is only allegation against him is for making video of prosecutrix while two other accused were committing rape of the prosecutrix, whereas no any camera or mobile phone has been recovered. Thus, the entire allegation levelled against the appellant is false and fabricated which has been made by the prosecutrix due to enmity as there is enmity between the family members of the appellant and the family members of the proxecutrix. 8. Learned counsel for the appellant submits that two accused against whom prosecutrix have levelled allegation of rape committed upon her by them have already been enlarged on bail by two different coordinate Benches of this Court vide orders dated 05.05.2023 and 19.06.2023 passed in Criminal Appeal No. 1082 of 2022 (Mohit Vs. State of U.P. and another) and Criminal Revision No. 820 of 2022 (Vijay Kumar Vs. State of U.P.)., and as there is only allegation against the appellant is for making video of prosecutrix while two other accused were committing rape of the prosecutrix, thus, the case of appellant is on the better footing than that of the aforesaid two accused. Both the orders are taken on record. 9. Learned counsel for the appellant further submits that younger cousin sister of the victim was also present on the date of occurrence who went to inform her family members about this incident. He submitted that the story as narrated by victim itself is improbable as the accused/appellants, who were three in number, would not allow anybody to escape from the scene of occurrence so easily so as to go and inform his/ her family members about the incident. He further submitted that the victim is major, aged about 20 years. The medical report of the victim does not corroborate the manner of commission of offence. He has also submitted that no mobile phone has been recovered by the Investigating Agency, nor any alleged video clip has been recovered or retrieved from any such mobile phone which belies the prosecution story. 10. The medical report of the victim does not corroborate the manner of commission of offence. He has also submitted that no mobile phone has been recovered by the Investigating Agency, nor any alleged video clip has been recovered or retrieved from any such mobile phone which belies the prosecution story. 10. Learned counsel for the appellant further submits that accused/appellant is languishing in jail since 26.03.2022, who has no previous criminal history, and in case the appellant is enlarged on bail, he shall not misuse the liberty of bail and he shall also fully cooperate with the trial. He has further submitted that there is no possibility of the appellant to intimidate or pressurize the witnesses or any other persons acquainted with the facts of the present case. 11. For the aforesaid reasons, learned counsel for the appellant submits that the instant criminal appeal deserves to be allowed and the orders dated 05.05.2022 and 05.07.2022 passed by the court of learned Special Judge (S.C./S.T. Act), Barabanki in Bail Application No. 1008 of 2022 (Dhirendra vs. State of U.P.), arising out of Case Crime No. 86 of 2022, under Sections 376-D, 506 I.P.C. read with Section 3(2)(V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and Section 67-A of I.T. (Amendment) Act and Bail Application No. 1639 of 2022 (Dhirendra Vs. State of U.P.), arising out of Case Crime No. 86 of 2022, under Section 66E of I.T. (Amendment) Act, relating to Police Station-Jaidpur, District-Barabanki, deserve to be set aside and consequently, the accused/appellant deserves to be enlarged on bail during pendency of the trial. 12. Several other submissions in order to demonstrate the falsity of the allegations made against the appellant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the appellant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has been assured on behalf of the appellant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that the accused is not having any criminal history and he is in jail since 26.03.2022 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial. 13. Per contra, learned A.G.A. has vehemently opposed the prayer by submitting that there is active participation of accused/appellant in the crime. Therefore, the accused/ appellant is not entitled to be enlarged on bail and the instant criminal appeal deserves to be dismissed. However, he has been unable to dispute the other factual submissions advanced by the learned counsel for the accused/appellant. 14. Having heard the learned counsel for the appellant, learned A.G.A. for the State and upon perusal of record, it transpires that initially a first information report came to be lodged against the present accused/appellant and two other named accused persons, namely, Mohit and Vijay after an inordinate and unexplained delay of three days, under Sections 376-D, 506 I.P.C., 67-A I.T. (Amendment) Act & Section 3(2)(V) of SC/ST Act. Upon conclusion of investigation, a charge sheet came to be laid against the all the three named accused including the appellant for the offence under Sections 376 D, 506 I.P.C. & Section 3(2)(v) S.C./S.T. Act, and Section 66-E I.T. (Amendment) Act. The victim is major, aged about 20 years. The medical report of the victim does not corroborate the manner of commission of offence. No mobile phone has been recovered by the Investigating Agency, nor any alleged video clip has been recovered or retrieved from any such mobile phone. The accused/ appellant is languishing in jail since 26.03.2022 and he has no previous criminal history. 15. The medical report of the victim does not corroborate the manner of commission of offence. No mobile phone has been recovered by the Investigating Agency, nor any alleged video clip has been recovered or retrieved from any such mobile phone. The accused/ appellant is languishing in jail since 26.03.2022 and he has no previous criminal history. 15. After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, unlikelihood of early conclusion of trial and also in absence of any convincing material to indicate the possibility of tampering with the evidence and considering the fact that there is no allegation of rape against the present appellant and only allegation made against him is of making video of the occurrence when other two accused were committing rape upon the prosecutrix, further two other named accused against whom prosecutrix have levelled allegation of rape committed upon her by them have already been enlarged on bail by two different coordinate Benches of this Court and the case of appellant is on the better footing than that of the aforesaid two accused, further medical report of the victim does not corroborate the manner of commission of offence, neither mobile phone has been recovered by the Investigating Agency, nor any alleged video clip has been recovered or retrieved from any such mobile phone, further considering the fact that appellant is in jail since 26.03.2022 and has now by done a substantial period of detention and further considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the case of Dataram Singh Vs. State of UP and another, reported in (2018) 3 SCC 22 , this Court is of the view that the learned court below has failed to appreciate the material available on record, both the impugned orders passed by the trial court are liable to be set aside. 16. Accordingly, the appeal is allowed. State of UP and another, reported in (2018) 3 SCC 22 , this Court is of the view that the learned court below has failed to appreciate the material available on record, both the impugned orders passed by the trial court are liable to be set aside. 16. Accordingly, the appeal is allowed. Consequently, the orders 05.05.2022 and 05.07.2022 passed by the court of learned Special Judge (S.C./S.T. Act), Barabanki in Bail Application No. 1008 of 2022 (Dhirendra vs. State of U.P.), arising out of Case Crime No. 86 of 2022, under Sections 376-D, 506 I.P.C. read with Section 3(2) (V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and Section 67-A of I.T. (Amendment) Act and Bail Application No. 1639 of 2022 (Dhirendra Vs. State of U.P.), arising out of Case Crime No. 86 of 2022, under Section 66-E of I.T. (Amendment) Act, relating to Police Station-Jaidpur, District-Barabanki, are hereby reversed and set aside. 17. Let the appellant, Dhirendra, be enlarged on bail in Case Crime No. 86 of 2022, under Sections 376-D, 506 I.P.C. read with Section 3(2)(V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and Section 67-A of I.T. (Amendment) Act and Case Crime No. 86 of 2022, under Section 66-E of I.T. (Amendment) Act, relating to Police Station-Jaidpur, District-Barabanki with the following conditions:- (i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned. (ii) The appellant shall appear and strictly comply following terms of bond executed under section 437 sub section 3 of Chapter- 33 of Cr.P.C.:- (a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter. (b) The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and (c) 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. (iii) The appellant shall cooperate with investigation /trial. (iv) The appellant 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. (iii) The appellant shall cooperate with investigation /trial. (iv) The appellant 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. (v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, the trial court may proceed against him under Section 229-A of the Indian Penal Code. (vi) In case, the appellant misuses the liberty of bail during trial, in order to secure his presence, proclamation under section 82 Cr.P.C. is issued and the appellant fails 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. (vii) The appellant shall remain present, 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 appellant 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. 18. The trial court is also directed to expedite the trial of the aforesaid case, within a period of one year from today, by following the provisions of Section 309 Cr.P.C., strictly without granting any unnecessary adjournments to the parties, in case there is no other legal impediment.