Hemant Kumar vs State Of U.P.
2023 Latest Caselaw 26738 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


					Neutral Citation No. - 2023:AHC:189422
 
					Reserved on 27.9.2023
 
					Delivered on 3.10.2023
 

 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33284 of 2023
 
Applicant :- Hemant Kumar
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Vikas Sharma,Sr. Advocate
 
Counsel for Opposite Party :- G.A.,Sudhir Dixit
 

 
Hon'ble Siddharth,J.

1. Heard Sri Dharmendra Singhal, learned Senior Counsel assisted by Sri Vikas Sharma, learned counsel for the applicant; Sri Sudhir Dixit, learned counsel for the informant; learned AGA for the State and perused the material placed on record.

2. The instant bail application has been filed on behalf of the applicant, Hemant Kumar, with a prayer to release him on bail in Case Crime No. 313 of 2019, under Sections 147, 148, 149, 302, 34 IPC, Police Station Arniya, District- Bulandshahr, during pendency of trial.

3. This is second bail application of the applicant. The first bail application of the applicant was rejected by this Court on 17.1.2023 directing the court below to conclude the trial of the aforesaid case expeditiously, preferably within one from the date of production of certified copy of the order.

4. Learned Senior Counsel for the applicant has submitted that applicant is in jail since 22.12.2019. He has admitted that the copy of bail rejection order dated 17.1.2023 was not brought to the notice of the trial court, but has submitted that in the present case, charges were framed against the applicant on 17.1.2020 and 32 prosecution witnesses are shown in the charge-sheet. Only two prosecution witnesses were examined by the trial court at the time of filing of the second bail application of the applicant. He has submitted that this is fist implication of the applicant. The trial will take time to conclude.

5. Learned counsel for the applicant has opposed the prayer for bail of the applicant and has submitted that three prosecution witnesses have already been examined by the trial court. They have fully supported the prosecution case. Hence the applicant does not deserves to be enlarged on bail. Since summoning of two co-accused, Mahendra Singh & Lalit, were made by the trial court under Section 319 Cr.P.C., delay has taken in the trial.

6. 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.

7. After hearing rival submissions, this Court finds that in the charge-sheet, 34 prosecution witnesses have been named by the Investigating Officer. The three witnesses already examined appear to be the main witnesses of fact. The applicant is under trial and cannot be kept indefinitely behind bar.

8. 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."

9. 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 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;  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.

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

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

Order Date :- 03.10.2023

Ruchi Agrahari