V.K. Shukla, Mahesh Chandra Tripathi, J. - (1.) Yashpal s/o Durga Prasad is before this Court assailing the validity of the notification dated 29.4.2016 declaring petitioner as disqualified to continue as Corporator of Ward No. 23, Nagar Nigam, Jhansi and the subsequent notification dated 6.7.2016 wherein in the vacancy, that has so occurred, election notification has been published.
(2.) Petitioner contested the election of Corporator from Ward No. 23, Nagar Nigam, Jhansi, and was declared elected on 4.7.2012 and since then continued to function as Corporator. It appears that while petitioner has been continuing as Corporator a FIR has been lodged against him bearing Case Crime No. 3 of 2014 under Section 376 IPC read with Section 6 of POCSO Act. Thereafter, petitioner was put up for trial and ultimately the Additional Sessions Judge, Court No. 6, Jhansi, vide judgment and order dated 25.11.2015 proceeded to punish the petitioner in Special Sessions Trial No. 34 of 2014 (State v. Jitendra & others) whereby the petitioner has been convicted and sentenced to five years' RI and a fine of Rs. 5000/- under section 363 IPC and twenty years' RI and a fine of Rs. 30,000/- under section 376-D IPC with default stipulation. Petitioner against the said order of conviction has preferred Criminal Appeal No. 5743 of 2015 (Yashpal v. State of U.P.) wherein following order has been passed; Heard learned counsel for the appellant, Shri Rajeev Pandey, learned counsel for the complainant and learned Additional Government Advocate for the State-respondent. A prayer for bail has been made by the appellant Yashpal in this criminal appeal, which has been filed against the judgement and order dated 25.11.2015 passed by the learned Additional Sessions Judge, Court No. 6, Jhansi in Special Sessions Trial No. 34 of 2014 (State v. Jitendra and others) arising out of Case Crime No. 3 of 2014 , under sections 363, 376, 506 IPC and 6 POCSO Act, PS Prem Nagar, district Jhansi, whereby the appellant Yashpal has been convicted and sentenced to five years' RI and a fine of Rs. 5000/- under section 363 IPC and twenty years' RI and a fine of Rs. 30,000/- under section 376-D IPC with default stipulation. It has been contended on behalf of the appellant that the informant did not wholly support the prosecution case, even the victim did not support the prosecution version, inasmuch as she has stated that the present accused Yashpal, who was present in court did not commit rape on her, but it was some other Yashpal. Thus, identity of the accused is in question. The learned trial court has based its judgment on surmises and conjectures and illegal evidence. He was on bail during trial. The appellant did not misuse the liberty of bail. Hence, he is entitled to bail. Learned AGA has opposed the prayer for bail and has submitted that the lower court has based its conviction on evidence available on record. Hence, the bail application is liable to be rejected. Having heard the submission made by learned counsel for the appellant and perused the material brought on record, this Court is of the view that appellant-applicant is entitled to be released on bail during the pendency of criminal appeal before this Court. Let the appellant-Yashpal convicted and sentenced in Sessions Trial No. 34 of 2014 (State v. Jitendra and others) arising out of Case Crime No. 3 of 2014, under sections 363, 376-D IPC, PS Prem Nagar, district Jhansi, be released on bail on his furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned. On acceptance of bail bonds and personal bonds, the lower court shall transmit photostat copies thereof to this Court for being kept on record. List after six weeks for hearing.
(3.) Record in question reflects that State Government, in view of the conviction that has been so earned by the petitioner, has proceeded to exercise its authority conferred under Section 25 (1) (a) of U.P. Nagar Nigam Act, 1959, and petitioner has been declared as disqualified and vacancy in question has been declared for the post of Corporator of Ward No. 23, Nagar Nigam, Jhansi and, thereafter, against the said vacancy in question State Election Commission has published election programme and thus impelling the petitioner to be before this Court.;