Allahabad High Court
Kaptan vs State Of U.P. And Another on 15 February, 2023
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 73
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1642 of 2023
Applicant :- Kaptan
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Rajat Kumar Shukla
Counsel for Opposite Party :- G.A.,Sushil Dubey
Hon'ble Siddharth,J.
Heard learned counsel for the applicant as well as the learned AGA for the State and perused the material placed on record.
Supplementary-affidavit filed by learned counsel for applicant is taken on record.
The instant bail application has been filed on behalf of the applicant, Kaptan, with a prayer to release him on bail in Case Crime No. 177 of 2022, under Sections 147, 148, 149, 302 IPC, Police Station Baldeo, District- Mathura, during pendency of trial.
There is allegation in the FIR that the applicant and co-accused persons caused the offence of rioting and murder by forming illegal assembly and with common object.
Learned counsel for the applicant has submitted that there is allegation in the FIR that the deceased was having affair with the daughter of co-accused, Surendra Singh, and Usha. He was caught by the co-accused, Surendra Singh, in the room of his daughter and thereafter all the accused persons are alleged to have beaten the deceased to death. He has pointed out to the statement of the daughter of co-accused, Surendra Singh and Usha, with whom the deceased had affair, wherein she has stated that when the deceased had come to her house, her father co-accused, Surendra Singh, had first beaten her and thereafter he started beating the deceased by danda. Then, the applicant and co-accused came and stopped him from beating the deceased. She has not implicated the applicant for alleged offence but has only implicated her father, co-accused, Surendra Singh. The applicant has been falsely implicated in this case. He has no criminal history to his credit and is languishing in jail since 08.08.2022. The trial in the aforesaid case is not likely to be concluded in near future.
Per contra learned A.G.A. has opposed the prayer for bail of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserves any indulgence. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail.
Regarding long incarceration of under trials prisoners in jail due to delay in conclusion of trial, the Hon'ble Apex Court in re: Union of India vs. K.A. Najeeb reported in AIR 2021 Supreme Court 712 has held in Para 16 of the judgment being reproduced herein below as follows :-
"This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail."
Having considered the submissions of the parties noted above, finding force in the submissions made by the learned counsel for the applicant, keeping in 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. & Another, passed in S.L.P.(Crl.) No. 5191 of 2021, judgement dated 11.7.2022 and considering 5-6 times overcrowding in jails over and above their capacity by under trials and without expressing any opinion on the merits of the case, let the applicant involved in the aforesaid crime 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 with the following conditions that :-
(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 misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail 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.
In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Order Date :- 15.2.2023
Abhishek
