Vinod Kumar Upadhyaya @ Nanhey vs State Of U.P.
2015 Latest Caselaw 512 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 11
 

 
Case :- BAIL No. - 7032 of 2014
 

 
Applicant :- Vinod Kumar Upadhyaya @ Nanhey
 
Opposite Party :- State Of U.P.
 
Counsel for Applicant :- Rajbaksh Singh
 
Counsel for Opposite Party :- Govt.Advocate
 

 
Hon'ble Pratyush Kumar,J.

Heard learned counsel for the applicant and learned A.G.A. for the State and perused the record.

Learned counsel for the applicant has argued that the applicant is innocent. He has been falsely implicated due to malafide reason. He submits that the applicant was married with deceased 18 years ago and one child was born out of their wed-lock. The applicant has never demanded any dowry. Nephew of the deceased Manish Mishra developed illicit relation with the daughter of Haushila Prasad (cousin of the applicant) on which relations deteriorated and Hausla Prasad his wife and his in laws murdered the deceased. The incident was reported to the police on 19.5.2013 but no action was taken. There is no evidence against the applicant, two co-accused namely Smt. Kamla Devi and Km.Gyanmati Upadhyaya has been released on bail.

It has been further argued that Hausla Prasad and his wife has already been released on bail by the court below.

On behalf of prosecution, bail has been opposed and it had been stated that cross version put- forth of the applicant is after thought deceased was horribly burned by the applicant. It was the responsibility of the applicant to inform the authority that he not murdered her but he had failed to do so, therefore, under Section 106 of the Evidence Act he will be put to strict proof to prove the fact assaulted by him.

There are two versions of the incident, version of the applicant is not a empty version. On behalf of applicant, an application was moved before the concerned magistrate, Annexure no.2 of the supporting affidavit is a copy of the application dated 19.5.2013 allegedly given by the applicant to the S.O. of police station concerned. Though this fact has come on record that at the time of inquest report, applicant was not present on the spot but only on account of absence from the spot, burden of proof, placed by section 106 of the Evidence Act and being husband of the deceased that applicant cannot be confined indefinitely in jail on the basis of mere suspicion. Some proof is required to detain him in jail.

I have gone through the order passed by the court below. The order run to four pages but no evidence has been referred to show the implication of the applicant in the said crime.

U/S 439 Cr.P.C, the High Court and Court of Session have been conferred power to grant the bail but no ground have been enumerated on which bail may be granted and the accused can be enlarged on bail. This shows that grant of bail or rejection thereto is a discretionary matter. Discretion is absolute but exercise of the some by judges called as judicial discretion is to be exercised on sound principles. According to Justice Krishna Ayyar in the case of Babu Singh Vs. State of U.P., AIR 1978 SC 527 the connotation of discretion in reference to which is as under:

"8. The Code is cryptic on this topic and the court prefers to bet tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden on the public treasury, all of which insists that a developed jurisprudence of bail is integral to a socially sensitized judicial process. As Chamber Judge in the summit court I have to deal with this uncanalised case-flow, ad hoc response to the docket being the flickering candle light. So it is desirable that the subject is disposed of on basic principle, not improvised brevity draped as discretion. Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21that the curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorise impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of "procedure established by law". The last four words of Article 21are the life of that human right.

9. The doctrine of Police Power, constitutionally validates punitive processes for the maintenance of public order, security of the State, national integrity and the interest of the public generally. Even so, having regard to the solemn issue involved, deprivation of personal freedom, ephemeral or enduring, must be founded on the most serious considerations relevant to the welfare objectives of society, specified in the Constitution.

10. What then, is 'judicial discretion' in this bail context? In the elegant words of Benjamin Cardozo.

The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to 'the primordial necessity of order in the social life'. Wide enough in all conscience is the field of discretion that remains.

(The Nature of Judicial Process-Yale University Press (1921).

Even so it is useful to notice the tart terms of Lord Camdon that the discretion of a judge is the law of tyrants: it is always unknown, it is different in different men; it is casual, and depends upon Constitution temper and passion, In the best, it is often times caprice; in the worst, it is every vice, folly and passion to which human nature is liable.... (1 Bovu. Law Dict., Rawles' III Revision p. 685-quoted in Judicial Discretion-National College of the State Judiciary, Reno, Nevada p. 14).

11. Some jurists have regarded the term 'judicial discretion' as a misnomer. Nevertheless, the vesting of discretion is the unspoken but inescapable, silent command of our judicial system, and those who exercise it will remember that 'discretion, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful but legal and regular.

(Attributed to Lord Mansfield Tinglay v. Dolby, 14 N.W. 146)

An appeal to a judge's discretion is an appeal to his judicial conscience. The discretion must be exercised, not in opposition to, but in accordance with, established principles of law.

Judicial discretion, (ibid) p. 33"

Regarding grant/ refusal of bail,  the Hon'ble Apex Court in the said case has observed the following;

" 12. Having grasped the core concept of judicial discretion and the constitutional perspective in which the Court must operate public policy by a restraint on liberty, we have to proceed to see what are the relevant criteria for grant or refusal of bail in the case of a person who has either been convicted and has appealed or one whose conviction has been set aside but leave has been granted by this Court to appeal against the acquittal. "What is often forgotten, and therefore warrants reminder, is the object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russel, C.J. said

I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the magistracy of the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial.

(R. v. Rose-1898 18Cox CC. 717; 67 LJQB 289-quoted in 'The granting of Bail', Mod. Law Rev. Vol. 81, Jan 1968 p. 40, 48).

This theme was developed by Lord Russel of Killowen C. J., when he charged the grand jury at Salisbury Assizes, 1899 :

... it was the duty of magistrates to admit accused persons to bail, wherever practicable, unless there were strong grounds for supposing that such persons would not appear to take their trial. It was not the poorer classes who did not appear, for their circumstances were such as to tie them to the place where they carried on their work. They had not the golden wings with which to fly from justice.

(1899) 63 J. P. 193, Mod. Law Rev. p. 49 (ibid).

In Archbold it is stated that

The proper test of whether bail should be granted or refused is whether it is probable that the defendant will appear to take his trial....

The test should be applied by reference to the following considerations :

(1) The nature of the accusation.

(2) The nature of the evidence in support of the accusation

(a) The severity of the punishment which conviction will entail.

(4) Whether the sureties are independent, or indemnified by the accused person....

(Mod. Law Rev. ibid, p. 53-Archbold, pleading Evidence and Practice in Criminal Cases, 56th edn., London, 1966 para 203)

Perhaps, this is an overly simplistic statement and we must remember the constitutional focus in Article 21and 19before following diffuse observations and practices in the English system. Even in England there is a growing awareness that the working of the bail system requires a second look from the point of view of correct legal criteria and sound principles, as has been pointed out by Dr. Bottomley. (The Granting of Bail : Principles and Practices : Mod. Law Rev. ibid p. 40 to 54).

13. Let us have a glance at the pros and cons and the true principle around which other relevant factors must revolve. When the case is finally disposed of and a person is sentenced to incarceration, things stand on a different footing. We are concerned with the penultimate stage and the principal rule to guide release on bail should be to secure the presence of the applicant who seeks to be liberated, to take judgment and serve sentence in the event of the court punishing him with imprisonment. In this perspective, relevance of considerations is regulated by their nexus with the likely absence of the applicant for fear of a severe sentence, if such be plausible in the case. As Erie J. indicated, when the crime charged (of which a conviction has been sustained) is of the highest magnitude and the punishment of it assigned by law is of extreme severity, the Court may reasonably presume, some evidence warranting, that no amount of bail would secure the presence of the convict at the stage of judgment, should he be enlarged. (Mod. Law Rev. p. 50 ibid, 1952 I.E.&B.L). Lord Campbell CJ concurred in this approach in that case and Coleridge J. set down the order of priorities as follows :

I do not think that an accused party is detained in custody because of his guilt, but because there are sufficient probable grounds for the charge against him as to make it proper that he should be tried, and because the detention is necessary to ensure his appearance at trial.... It is a very important element in considering whether the party, if admitted to bail, would appear to take his trial; and I think that in coming to a determination on that point three elements will generally be found the most important the charge, the nature of the evidence by which it is supported, and the punishment to which the party would be liable if convicted. In the present case, the charge is that of wilful murder; the evidence contains an admission by the prisoners of the truth of the charge, and the punishment of the offence is, by law, death.

(Mod. Law Rev. ibid p. 50-51

14. It is thus obvious that the nature of the charge is the vital factor and the nature of the evidence also is pertinent. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue.

15. Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being.

(Patrick Devlin The Criminal Prosecution in England London)1960,Mod.54;

16. Thus the legal principle and practice validate the court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record-particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals it is part of criminological history that a thoughtless bail order has enabled the bailee to export the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance.

17. The significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Art-19. Indeed, the considerations I have set out as criteria are germane to the constitutional proposition I have deduced. Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bifocal interests of justice-to the individual involved and society affected.

18. We must weigh the contrary factors to answer the test of reasonableness, subject to the need for securing the presence of the bail applicant. It makes sense to assume that a man on bail has a batter chance to prepare or present his case than one remanded in custody. And if public justice is to be promoted, mechanical detention should be demoted. In the United States, which has a constitutional perspective close to ours, the function of bail is limited, 'community roots' of the applicant are stressed and, after the Vera Foundation's Manhattan Bail Project, monetary suretyship is losing ground. The considerable public expense in keeping in custody where no danger of disappearance or disturbance can arise, is not a negligible consideration. Equally important is the deplorable condition, verging on the inhuman, of our sub-jails, that the unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible.

19. A few other weighty factors deserve reference. All deprivation of liberty is validated by social defense and individual correction along an anti-criminal direction, public justice is central to the whole scheme of bail law. Fleeing justice must be forbidden but punitive harshness should be minimised. Restorative devices to redeem the man, even through community service, meditative drill, study classes or other resources should be innovated, and playing foul with public peace by tampering with evidence, intimidating witnesses or committing offences while on judicially sanctioned 'free enterprise', should be provided against. No seeker of justice shall play confidence tricks on the court or community. Thus, conditions may be hung around bail orders, not to cripple but to protect. Such is the holistic jurisdiction and humanistic orientation invoked by the judicial discretion correlated to the values of our constitution.

20. Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with a grave offence, has been acquitted at a stage has the intermediate acquittal pertinence to a bail plea when the appeal before this Court depends? Yes, it has. The panic which might prompt the accused to jump the gauntlet of-justice is less, having enjoyed the confidence of the court's verdict once. Concurrent holdings of guilt have the opposite effect. Again, the ground for denial of provisional release becomes weaker when the fact stares us in the fact that a fair finding-if that be so-of innocence has been recorded by one court It may be conclusive, for the judgment of acquittal may be ex facie wrong, the likelihood of desperate reprisal, if enlarged, may be a deterrent and his own safety may be more in prison than in the vengeful village where feuds have provoked the violent offence. It depends. AntecInterim order, if any, stands vacated.edents of the man and socio-geographical circumstances have a bearing only from this angle. Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and police prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the court into a complacent refusal.

Here some recent judgments of the Apex Court may be referred gainfully. The relevant observations made therein are as under:-

In Chaman Lal v. State of U.P. (2004) 7 SCC 525, the Apex Court, while dealing with an application for bail, has stated that certain factors are to be borne in mind and they are:

"...(i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant, and (iii) prima facie satisfaction of the court in support of the charge."

In Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14 SCC 496, the Apex Court, while emphasizing on the exercise of discretionary power generally has to be done in strict compliance with the basic principles laid down in plethora of decisions of this Court, has observed as follows:

"9...among other circumstances, the factors which are to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to be believed that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behavior, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.

The said principles have been reiterated in Ash Mohammad v. Shiv Raj Singh alias Lalla Babu and Anr. (2012) 9 SCC 446.

In this context, reference may also be made to the recent pronouncement in Central Bureau of Investigation v. V. Vijay Sai Reddy : 2013 (7) SCALE 15 wherein the Hon'ble Apex Court has expressed thus:

"28. While granting bail, the court has to keep in mind the nature of accusation, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the Court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."

This it is a settled position that the court is required to see whether accused will be available with the trial, he will not tamper with the evidence collected by the prosecution, he will not repeat the same offence not and his release would not jeopardize the interest of the society.

In the present case, taking into consideration seriousness of the offence in case punishment provide, therefor, evidence collected by the Investigating Officer so far I do not think there is any reason to detained the applicant in jail any further.

Let the applicant Vinod Kumar Upadhya, involved in Case Crime No. 160 of 2013, under Sections  498-A, 302, 326 IPC, P.S Karaundi Kalan, District Sultanpur be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

(i) 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.

(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant 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.

(iv) 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.

Order Date :- 15.5.2015

SFH