Vikas Patel vs State Of U.P.
2023 Latest Caselaw 20123 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


	                                  Neutral Citation No. - 2023:AHC:154700                  
 
							   Reserved On:- 31.07.2023  
 
  							   Delivered On:- 02.08.2023                        
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8683 of 2021 
 
Applicant :- Vikas Patel 
 
Opposite Party :- State of U.P. 
 
Counsel for Applicant :- Vinay Dubey,Abhishek Bhushan 
 
Counsel for Opposite Party :- G.A.,Deepak Dubey
 

 
Hon'ble Siddharth, J.

1. Heard Sri Abhishek Bhushan, learned counsel for the applicant, Sri Deepak Dubey, learned counsel for the opposite party and learned AGA for the State.

2. There is allegation in the FIR that the son of the informant had gone out of the house at about 10:30 p.m on 10.08.2020 saying that he will return after 15-20 minutes but when he did not returned even after long time search was made and his dead body was found in a school campus. Other son of the informant enquired about his missing son from the applicant, who resides in the same locality, but he did not replied properly and ran away. Apprehension was expressed that the murder of his son was caused by the applicant with the help of other accused. Hence, FIR was lodged on 11.08.2020 at 13:40 hours.

3. Learned counsel for the applicant submits that in the statement of the informant he has admitted that the deceased was an electrician. He was in bad company and used to consume liquor. In the second statement of the informant he repeated the allegations made earlier and further stated that on the night of incident he saw the applicant taking long strides at about 12:00 p.m and when he saw his other son, Arvind, he increased his speed and when his son tried to ask him something he did not stopped and therefore he expressed apprehension that the applicant had committed the murder of his son. The investigating officer has collected the C.C.T.V footage of the same night wherein the deceased was seen with the applicant but he was not seen committing the alleged offence.

4. Counsel for the applicant also submits that the applicant and the deceased belonged to the same locality and were well-known to each other. Therefore, there was nothing abnormal in their being seen together. No weapon or any other act which may point out to the commission of the alleged offence by the applicant is seen in the C.C.T.V footage. The applicant is young boy aged about 20-22 years while the deceased was elder to him, aged about 30-32 years. He has further submitted that planted recovery of knife was also shown from the applicant but it was neither blood stained nor there is any public witness of the recovery of the same. He has submitted that the applicant is in jail since 14.08.2020 and has no criminal history to his credit. Earlier also there was no enmity between the applicant and the deceased or their family. He has been falsely implicated on the basis of a C.C.T.V footage collected by the investigating officer which was not supported by any certificate under Section 65-B of I.T. Act.

5. Counsel for the applicant has relied upon the judgment in the case of Harishchandra Ladaku Thange vs. Sate of Maharashtra, 2007(3) ACR 3443 (SC), and has submitted that only on the basis of evidence of last seen together and without any other evidence completing the chain of circumstances, the implication of the applicant is unjustifed. There is no FSL report regarding the clothes of the applicant recovered from his house bearing red stains.

6. Learned counsel for the informant has vehemently opposed the bail application. He has relied upon the judgment in the case of Tejas Kanubhai Zala and Another vs. Jayaben, 2022 0 Supreme (SC) 19. He has relied upon in paragraph 5.2 thereof wherein the Apex Court considered the arugment of the counsel for the applicant challenging a bail order passed by the High Court on the ground that the entire incident was recorded in mobile phone as well as C.C.T.V footage wherein it was found that the deceased was tied by a rope to a gate and was being beaten by accused. The Apex Court set aside the bail granted to the applicant on the basis of such C.C.T.V footage.

7. He has further relied upon in the another judgment of the Apex Court in the case of Shruti Jaidka Bhargava vs. The State of Uttar Pradesh and Another in Criminal Appeal No. 1505 of 2022, wherein the bail was granted to an accused by the High Court, but it was set aside by the Apex Court on the ground that no reasons were given for granting bail to an accused.

8. Learned counsel for the informant has placed before this Court another judgment of the Apex Court in the case of State By Karnataka Lokayukta, Police Station, Bengaluru vs. M.R. Hiremath (2019) 7 SCC 515, and has submitted that the Apex Court in the aforesaid case has held that at the stage of consideration of the discharge application, non-filing of certificate under Section 65-B of Evidence Act regarding secondary evidence in the form of electronic evidence cannot be said to be fatal. The High Court allowed the discharge application which was initially rejected by the trial Court on the ground that there was no such certificate of electronic evidence. The Apex Court held that at the time of consideration of discharge application, court must proceed on the assumption that material placed by the prosecution is true and proceed on its evaluation, on its face value. Learned counsel for the informant submits that in the present case the certificate under Section 65-B of Evidence Act has not been collected by the Investigating Officer, but only in absence thereof the C.C.T.V footage collected by the investigating officer cannot be discarded.

9. After hearing the rival contentions, this Court finds that in the C.C.T.V footage collected by the investigating officer, the applicant is seen going with the deceased and returning alone from place of incident. The C.C.T.V footage collected by the investigating officer is not supported by any certificate under Section 65-B of Evidence Act. However, even if C.C.T.V footage is accepted, it does implicates the applicant with actual commission of alleged offence as in the case of Tejas Kanubhai (Supra) cited by the learned counsel for the informant. It is still evidence of last seen only. Before the trial Court, the informant and father of the deceased have been examined. Informant has stated before the court that there was no enmity between his family and family of the applicant. No dispute or enmity existed between them. It is a case of circumstantial evidence. In the absence of motive of the crime, the implication of the applicant only on the basis of last seen evidence cannot be justified at this stage. Trial has already commenced, but will take time to conclude. The case of Shruti Jaidka (Supra) cited by counsel for the informant has not relevance since in this case bail has not been granted as yet. It is being considered. The judgment of the Apex Court in the case of State By Karnataka Lokayukta (supra) lays down the correct law but this case is distinguishable on facts. In that case and also in the case of Tejas Kanubhai (supra) there was evidence of actual commission of crime by the accused in the electronic form, but it is not so in the present case. Certificate under Section 65-B of Evidence Act was not there in any case.

10. Counsel for the informant has pointed out that some delay has been caused by the applicant side in cross-examination of P.W-1. Therefore, the trial Court be directed to conclude the trial against the applicant within period of one year.

11. On the other hand learned A.G.A has opposed the prayer for bail.

12. 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; considering the dictum of Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021; 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.

13. Let the applicant, Vikas Patel, involved in Case Crime No. 282 of 2020, under Section- 302 IPC, Police Station- Kydganj, District- Prayagraj, 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 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.

(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.

13. In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.

14. Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

15. Trial court is directed to conclude the trial of the applicant as expeditiously as possible preferably within a period of one year.

16. Registrar (compliance) is directed to communicate this order to the trial Court for necessary compliance within ten days.

Order Date :- 02.08.2023

Rohit