Allahabad High Court
Arun Kumar Pathak vs State Of U.P. on 25 February, 2025
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:26835
Reserved On:-20.02.2025
Delivered On:-25.02.2025
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45821 of 2024
Applicant :- Arun Kumar Pathak
Opposite Party :- State of U.P.
Counsel for Applicant :- Saurabh Basu,Sr. Advocate
Counsel for Opposite Party :- Dashrath Lal Dwivedi,G.A.,Shashi Kumar Dwivedi
Hon'ble Siddharth,J.
1. Heard Shri Kamal Krishna, learned Senior Counsel assisted by Shri Saurabh Basu, learned Counsel for the applicant; Sri Shashi Kumar Dwivedi, learned counsel for the informant and 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, Arun Kumar Pathak, with a prayer to release him on bail in Case Crime No. 0092 of 2021, under Sections 147, 148, 149, 323, 504, 506, 302, 120-B, 34, 392 and 412 of IPC, Police Station- Lalapur, District- Allahabad, during pendency of trial.
3. This is the third bail application of the applicant. His earlier bail applications were rejected by this court on 21.02.2023 and 12.12.2023. While rejecting the first bail application of the applicant, the trial court was directed to conclude the trial within period of one year and also while rejecting the second bail application of the applicant trial court was similarly directed to conclude the trial within further period of 1 year.
4. Learned Senior counsel for the applicant has submitted that at the time of filing of the bail application six prosecution witnesses were examined and statement of P.W.-7 was being recorded. From the perusal of the statement of P.W. I, Mukesh Kumar Tripathi, several anomalies have come to the light. His statement differs from the version given at the time of registration of F.I.R. as well as from his own statement recorded under Section 161 Cr.P.C.
5. The statement of P.W. 2, Sudama Pal, has also been recorded during the ongoing trial. He has denied the recovery of cartridges from the deceased, Amit Kumar Tiwari @ Kallu. He has further made another different statement about the injuries sustained by the accused in the fight, which was never stated earlier. P.W.-2 has alleged that applicant, Arun Kumar Pathak, fired by Rifle and not by Revolver, and he knows about the difference between Rifle and Revolver. Prakash Pathak had also fired upon the deceased which has also created a serious doubt upon the whole F.I.R. version as other than the applicant nobody else was given any role of firing upon the deceased. It has been specifically mentioned by the P.W. 2 that Prakash Pathak had fired upon the deceased which hit him in the stomach.
6. Further the statement of P.W. 3, Jagjivan Prasad, has also been recorded and he has given a different version from the statements of P.W. 1 & P.W. 2, which makes the whole case doubtful. From the perusal of the statement of P.W. 3, no link can be established between the incident that took place at 09.30 AM at the field of Prakash Pathak and the before the house of Arun Pathak. P.W.-3 has stated that he is not sure about who fired by 0.12 bore Rifle. Whether it was Prakash Pathak or Prashant Pathak.
7. The statement of P.W. 4, Ramesh Kumar Tiwari, has commenced which clearly shows that the P.W. 4 was not the eye witness of the incident and he was later on produced as an eye witness.
8. The statements of P.W. 5 and P.W. 6 have also recorded, where the date and time of incident as per the said statements do not match.
9. From the perusal of the statements recorded till date there have been deviations in thethe versions of incident given by P.W.1, P.W. 2, P.W. 3 and P.W. 4 where from it can very easily be inferred that nobody has given the correct version of incident, which creates a serious doubt about the occurrence of the said incident and therefore, it can be concluded that the applicant has been falsely implicated in this case. He has no criminal history to his credit and is languishing in jail since 22.08.2021. The trial in the aforesaid case is not likely to be concluded in near future.
10. Learned counsel for informant has vehemently opposed the bail application and has submitted that the applicant side has tried to delay the conclusion of trial by resorting to number of delaying tactics. They filed a transfer application for transfer of the trial before Sessions Judge on 19.10.2022 which was rejected on 16.11.2022. Thereafter, the applicant's side approach this Court with the same prayer and it was turned down on 25.04.2022. Again a transfer application was filed before Sessions Judge which was rejected on 11.10.2023. The applicant himself and co-accused have threatened the witnesses from time to time regarding which a complaint was made before the Sessions Judge.
11. After rejection of the second bail application the applicant presented the certified copy of the order dated 12.12.2023 before the trial court, thereafter, also the applicant and co-accused took number of adjournments. Adjournments have been sought in the trial on the ground that Sri Tara Chand Gupta, Advocate, counsel for the defense is ill when the aforesaid counsel did not filed any Vakalatnama. The applicant remained absent from the court on the ground of illness but the medical officer of the jail submitted that applicant does not suffers any serious illness. Six counsels have been appointed on behalf of defence but they did not cross-examined the witnesses promptly and took adjournments. He has relied upon the judgment of Apex Court in the case of M/s Maxim India Integrated Circuit Design (P) Ltd. Vs. Andappa (D) By LRs and Ors. (Civil Appeal Nos. 3650-3655 of 2018) and has submitted that the applicant has not approached the trial court with clean hands and his conduct disentitles him to grant of bail by this Court. He has further relied upon the judgment of the Apex Court in the case of State of Madhya Pradesh Vs. Kajad 2001 LawSuit (SC)1192 and has submitted that same ground cannot be re-agitated in successive bail applications after rejection of the earlier bail applications. He has further submitted that P.W.-10 is to be examined before the trial court, but he is not appearing.
12. Learned A.G.A. has also 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.
13. After hearing the rival contentions, this Court finds that neither the learned counsel for the informant nor the learned AGA have replied to the arguments made by the learned Senior counsel for the applicant regarding the contradictions in the statements of the witnesses. This Court further finds that the applicant is in jail and he cannot be blamed for delay in trial, if the co-accused are seeking adjournments. Regarding the argument that the applicant is not appearing before the court, it is for the trial court to get his presence secured through jail officials. The argument of the learned counsel for the informant that Sri Tara Chand Gupta, is not an Advocate of the defence in this case but adjournment has been sought on his behalf cannot be considered by this Court being question of fact. There is nothing on record which shows that any objection in this regard was taken before the trial court by the prosecution side and any order was passed thereon.
14. 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."
15. 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 paragraph no.53 of Apex Court in the case of Manish Sisodia Vs. Directorate of Enforcement passed in Criminal Appeal No. .../2024 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.
16. In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
17. Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
18. The court below is directed to conclude the trial against the applicant, as expeditiously as possible, preferably within a period of one year.
19. Registrar(Compliance) is directed to communicate this order to the concerned court below within a week.
Order Date :- 25.2.2025
Abhishek
