Allahabad High Court
Rajeev And Another vs State Of U.P. And Another on 10 January, 2023
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on:- 03.01.2023
Delivered on:- 10.01.2023
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14977 of 2021
Applicant :- Rajeev And Another
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Ashish Dwivedi,Amar Bahadur Maurya,Ishwar Chandra Tyagi,Ram Charan Lal,Sudarshan Singh
Counsel for Opposite Party :- G.A.
Hon'ble Siddharth,J.
Heard learned counsel for the applicants as well as the learned AGA for the State and perused the material placed on record.
The instant bail application has been filed on behalf of the applicant, Rajeev and Satya Prakash @ Nanhe, with a prayer to release them on bail in Case Crime No.99 of 2020, under Sections 302, 376D IPC and 5/6 of POCSO Act, Police Station- Aligang, District- Bareilly, during pendency of trial.
There is allegation against unknown accused in the F.I.R. that the daughter of the informant was abducted from a marriage party and subjected to gang-rape and murder besides commission of offence under Section 5/6 POCSO Act.
Learned counsel for the applicants has submitted that the name of the applicant came to light in the statement of grandfather of the deceased namely, Dhyan Singh, wherein he stated that police is harassing him and he is apologising for his mistake and he may be pardoned.
The statements of Manoj Yadav and Subodh Yadav were recorded by the Police wherein, they gave the evidence of last seen of the deceased with the applicant and other co-accused. Confessional statements of the applicants were also recorded. The applicants have been falsely implicated in this case. They have no criminal history to their credit and are languishing in jail since 26.06.2020. The trial in the aforesaid case is not likely to be concluded in near future.
Per contra, learned A.G.A. has submitted that human blood has been found on the piece of bamboo, recovered from the place of incident and opposed the prayer for bail of the applicants by contending that the innocence of the applicants cannot be adjudged at pre trial stage, therefore, they do not deserve any indulgence. In case the applicants are released on bail they will again indulge in similar activities and will misuse the liberty of bail.
After hearing the rival contentions, this Court finds that it is a case of gruesome murder and gang-rape of minor girl, but this Court also finds that there is no other evidence against the applicants except the evidence of last seen with the deceased and their confessional statements before Police and grandfather of the deceased.
Neither of the parties are able to inform about the status of the trial. This Court, by the order dated 07.09.2022, directed the learned AGA to produce evidence whether any material has been recovered on pointing out any of the accused or not, but nothing has been brought on record.
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, 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 applicants 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 applicants shall not tamper with the evidence or threaten the witnesses.
(ii) The applicants 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 applicants 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 applicants 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 applicants 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, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
The Court below is directed to conclude the trial against the applicant, as expeditiously as possible, preferably within a period of one year from the date of production of certified copy of this order.
Order Date :- 10.01.2023
Abhishek Yadav
