Allahabad High Court
Om Prakash Pandey vs State Of U.P. on 28 October, 2023
Bench: Vikram D. Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:206147
Court No. - 76
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 828 of 2023
Applicant :- Om Prakash Pandey
Opposite Party :- State of U.P.
Counsel for Applicant :- Jainendra Kumar Mishra,Navnath Pandey
Counsel for Opposite Party :- G.A.
Hon'ble Vikram D. Chauhan,J.
Order on Second Bail Application
1. Learned A.G.A. submits that instructions have been received and has no objection in case the bail application is heard on merits.
2. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
3. This is the second bail application. The first bail application was rejected by this Court by order dated 11.11.2022. Learned counsel for the applicant submits that the second bail application has been filed on the ground that the provisions of Section 41A Cr.P.C. has not been complied with in the present matter. Learned counsel for the applicant has drawn attention of the Court to para 7 of the supplementary affidavit dated 28.08.2023 to submit that the provisions of Section 41A Cr.P.C. are mandatory in nature. However, the aforesaid was not complied with by the Investigating Officer. Learned counsel for the applicant has further relied upon the judgment of Supreme Court in Satender Kumar Antil vs. CBI 2022 SCC Online SC 825 to submit that the consequences of non-compliance of Section 41A Cr.P.C. certainly ensure benefit to the person suspected of an offence. The applicant has criminal history. Applicant is languishing in jail since 08.02.2022 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in the trial.
4. Learned A.G.A. for the State opposed the prayer for bail but does not dispute factual matrix of the case. He further submits that the provisions of Section 41A Cr.P.C. was not complied with on the ground that previously in other criminal cases notice under Section 41A Cr.P.C. was issued, however, the applicant has not complied with the same.
5. Learned AGA has pointed out the criminal antecedents of the Applicant. No material or circumstance has been brought to the notice of this court with regard to tampering of evidence or intimidating of witness in previous criminal cases. In Ash Mohammad v. Shiv Raj Singh, (2012) 9 SCC 446, the Apex Court in para 30 has observed:
"We may hasten to add that when we state that the accused is a history-sheeter we may not be understood to have said that a history-sheeter is never entitled to bail. But, it is a significant factor to be taken note of regard being had to the nature of crime in respect of which he has been booked."
6. In the case of Prabhakar Tewari Vs. State of U.P. and another, 2020 (11) SCC 648, the Hon'ble Supreme Court has observed that pendency of several criminal cases against an accused may itself cannot be a basis for refusal of bail.
7. In so far as criminal antecedents of the applicant is concerned, it is not the case of the State that applicant might tamper with or otherwise adversely influence the investigation, or that he might intimidate witnesses before or during the trial. The State has also not placed any material that applicant in past attempted to evade the process of law. If the accused is otherwise found to be entitled to bail, he cannot be denied bail only on the ground of criminal history, no exceptional circumstances on basis of criminal antecedents have been shown to deny bail to accused, hence, the Court does not feel it proper to deny bail to the applicant just on the ground that he had criminal antecedent.
8. The principle that Bail is a rule and Jail is an exception has been well recognised by Apex Court more specifically on the touch stone of Article 21 of the Constitution. The said principle has been reiterated by the Apex Court in Satyendra Kumar Antil Vs Central Bureau of Investigation and another, 2022 (10) SCC 51. Learned AGA has not shown any exceptional circumstances which would warrant denial of bail to the applicant.
9. No material, facts or circumstances has been shown by learned AGA that the accused may tamper with the evidence or witnesses or the accused is of such character that his mere presence at large would intimidate the witnesses or that accused will use his liberty to subvert justice or tamper with the evidence.
10. It is settled principle of law that the object of bail is to secure the attendance of the accused at the trial. No material particulars or circumstances suggestive of the applicant fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like have been shown by learned AGA for the State.
11. The provisions of Section 41 and 41A Cr.P.C. are mandatory in nature. The same have been enshrined in the Criminal Procedure Code in order to protect the liberty of an individual which is one of the essential facet of Article 21 of the Constitution of India. The non-compliance of Section 41 and 41A Cr.P.C. are fatal in nature. The applicant is being prosecuted for an offence where the maximum punishment is seven years. The applicant is already in jail since 08.02.2022 about 1 and 1/2 years.
12. Learned AGA for the State has not shown any material or circumstances that the accused/applicant is not entitled to bail in larger interests of the public or State.
13. Considering the facts and circumstances of the case, nature of offence, evidence, complicity of the accused, submissions of learned counsel for the parties 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 second bail application is allowed.
14. Let the applicant Om Prakash Pandey involved in Case Crime No. 577 of 2021 , under Sections 420, 406 IPC, Police Station Cantt, District Gorakhpur be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:-
i. The applicant will not tamper with the evidence during the trial.
ii. The applicant will not pressurize/intimidate the prosecution witness.
iii. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted and/or the applicant shall make himself available for interrogation by a police officer as and when required.
iv. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
v. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
vi. The applicant shall not leave India without the previous permission of the Court.
vii. In the event, the applicant changes his residential address, the applicant shall inform the court concerned about new residential address in writing.
15. In case of breach of any of the above condition, the prosecution shall be at liberty to move bail cancellation application before this Court.
Order Date :- 28.10.2023
RA
