Vikas Yadav vs State Of U.P & Anr
2009 Latest Caselaw 4274 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                     Crl.A No.910/2008

%                              Date of Decision: 23.10.2009

Vikas Yadav                                                     .... Appellant

                             Through Mr. U. Lalit, Senior Advocate with
                                     Mr.Sumeet Verma and Ms.Charu
                                     Verma, Advocates for the appellant.

                                            Versus

State of U.P & Anr                                            .... Respondents

                             Through Mr.Sanjeev    Bhandari,    Additional
                                     Standing Counsel for the State along
                                     with Mr.Sunil Kumar, Inspector (Crime
                                     Branch).
                                     Mr. P.K. Dey, Ms.Kamini Jaiswal and
                                     Mr. Kaushik Dey, Advocates for the
                                     complainant.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE VIPIN SANGHI

1.     Whether reporters of Local papers may be                   YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?                     NO
3.     Whether the judgment should be reported in                 NO
       the Digest?

ANIL KUMAR, J.

*

Crl.M.B No. 1218/2009

1. This is an application by the appellant/Vikas Yadav for

suspension of his sentence and his release on interim bail for a period

of one month to attend the marriage ceremonies of his sister Ms.Bharti

Singh. The appellant had been convicted for the offence of abducting

and murdering Nitish Katara and causing disappearance of evidence by

burning his dead body under sections 364/302/201/34 of IPC. He has

been sentenced to undergo life imprisonment for the offence under

Section 302/34 of IPC with a fine of Rs. 1 lac and in default of payment

of fine to undergo simple imprisonment of one year. He has been

sentenced to undergo imprisonment for ten year for the offence under

Section 364/34 of IPC with a fine of Rs. 50,000/- and in default of

payment of fine to undergo simple imprisonment of six months and he

has also been sentenced to undergo imprisonment for five years for the

offence under Section 201/34 of IPC with a fine of Rs.10,000/- and in

default of payment of fine to undergo simple imprisonment of three

months.

2. The applicant has contended that he has undergone continuous

incarceration of more than 7 years 7 months and his conduct has been

satisfactory during this period. His application for regular suspension of

sentence and his release on bail sought by Crl. M.B No.1381/2008 had

been dismissed by order dated 7th August, 2009.

3. The plea of the applicant is that his real sister Bharti Singh has

to marry Mr.Yatin s/o. Sh.Raj Kumar Yadav and the functions relating

to marriage ceremonies are on 20th October, 2009, Bhajan Sandhya;

Cocktail Party cum dinner on 24th October, 2009 at Hotel Monarch in

Chandigarh; lagan ceremony at Vatika Grand, Gurgaon on 26th

October, 2009; Ladies Sangeet party also at Hotel Monarch at

Chandigarh on 28th October, 2009; marriage on 1st November, 2009 at

Jhankar Garden, 555, M.G.Road, New Delhi-110030 and reception

ceremony at Village and Post Office Dulana, District Mahendergarh,

Haryana on 8th November, 2009.

4. The applicant has contended that he being the real brother of the

bride is under a duty to not only actively participate in all family

functions but he also has to make arrangements for the same.

Invitation card of the marriage functions is also annexed with the

application which application is signed by the counsel and is supported

by the affidavit of Ms.Bharti Singh, daughter of Sh.D.P.Yadav, sister of

the applicant.

5. The applicant has also asserted that his grandfather Sh.Tejpal

Yadav is very old and unwell and it is his earnest desire that he spends

more valuable time with the applicant and the applicant also wishes to

utilize the period of his interim bail to re-establish his ties with his

family and his sister.

6. The reliance has been placed by the applicant on the decision of a

Division Bench of this Court in Shakuntala Devi v. State, 1996

Crl.L.J.2954 and Inder Singh v. State, AIR 1978 SC 1091 and it is

contended that in order to initiate and sustain the reformative process a

convict should be released atleast for a month every year for

maintaining his family ties and a prisoner cannot be confined to his

own cribbed, cabined and confined world in the four walls of prison.

Reliance has also been placed on behalf of applicant on the decision of

this Court in Crl.M(Bail) No.925/2009 in Crl.Appeal No.338/2008

decided on 8th October, 2009; Crl.M (Bail) No.588/2009 in Crl.Appeal

No.357/2008 dated 3rd August, 2008 and Crl.M (Bail) No.877/2009 in

Crl.Appeal No.548/2009 dated 8th October, 2009 and 2006(1) JCC 284,

Rajesh v. State to contend that the appellant, in order to have ties with

family and society, is entitled for grant of interim bail especially in view

of the marriage of his only sister.

7. The application is contested by the State by contending, inter-

alia, that though the programmes of Bhajan Sandhya, Mehendi and

Ladies Sangeet are to be held at Hotel Monarch, Chandigarh, however,

no advance payment in this regard has been made for these functions

scheduled on 20th October, 2009 and 28th October, 2009. The marriage

ceremony to be held at Jhankar Garden, 555, M.G.Road, New Delhi is

not denied and the factum of marriage of the sister of the applicant

Ms.Bharti Singh with Mr.Yatin has also not been denied. Enquiries

have also been made from Sh.Yatin, r/o. House No.89, Sector 31,

Gurgaon. The State has also verified about the lagan ceremony stated to

be fixed on 26th October, 2009 at Vatika Grand, Gurgaon and the

reception ceremony to be held on 8th November, 2009 at Village and

Post Office Dulana, Mahendergarh, Haryana.

8. Regarding the affidavit of the sister of the applicant dated 9th

October, 2009 filed with the application it is asserted that the oath

commissioner was contacted on phone to produce the register, to

ascertain about the signing of the register by her, however, he has failed

to do so.

9. The suspension of sentence and release of applicant on bail is

opposed on the ground that from the enquiries conducted, it has

become apparent that there will be huge gathering of different sections

of people and the invitees could be more than 2000-3000. As there

would be free access to all sort of persons, in case the sentence is

suspended and the applicant is released on bail or allowed to join the

ceremonies under custodial parol, there is grave apprehension that

attempts would be made to facilitate fleeing the applicant and applicant

fleeing and also committing other serious and grave crimes. It is also

contended that the marriage functions are spread out in three States

and span about three weeks. The functions scheduled to be held in

Chandigarh/Gurgaon /District Mahender Garh are also stated to be

beyond the jurisdiction of this Court.

10. The application is also contested on the ground that the

suspension of sentence for attending the marriage and other functions

do not weigh enough in view of the previous conduct of the applicant

who had misused the liberty granted to him earlier during the period

when he was on bail in Jessica Lal's murder case. He had committed

the present offence while on bail in the said case. The application is also

opposed on the ground that the presence of the applicant is not

necessary for the ceremonies pertaining to the marriage of his sister as

the applicant has his father and another brother and other family

members to perform the ceremonies. It is not even stated that as per

religious and customary beliefs and practices, the presence of the

applicant is necessary for performance of any of the ceremonies.

11. The learned counsel for the complainant, who has been permitted

to make his submissions, has contended that the application of the

applicant for leading additional evidence under Section 391 Crl.PC is

pending consideration in respect of one of the crucial witness Sh.Ajay

Katara, PW.33 and suspending the sentence of the applicant and

releasing him on bail gives rise to grave apprehension that the applicant

would threaten and/or influence the said witness. The learned counsel

has also pointed out that the sister of the applicant Ms.Bharti Singh

was also a prosecution witness. However, when she was examined on

different dates, the applicant had opted not even to appear during the

trial and face her sister who had deposed about her relation with the

deceased Nitish Katara. It is argued that Ms.Bharti Singh was the

witness whose deposition has established the motive for the

commission of the offence by the applicant. Contact between the

applicant and the said witness Ms.Bharti Singh may also lead to her

being influenced at this stage.

12. It has also been contended that the applicant was involved in

Jessica Lal murder case and had absconded after that offence was

committed. Even after committing the murder of Nitish Katara, the

deceased, who was abducted while attending some marriage functions,

the applicant had again absconded and was apprehended much later

from Dabra, Madhya Pradesh. Apprehension has also been expressed

on behalf of the complainant, that if the applicant is released even for a

short time he may not come back as the appeal of the State for

enhancement of his sentence from life imprisonment to death sentence

and the criminal revision petition of the complainant to enhance the

sentence of the applicant is also pending adjudication and considering

all these circumstances, it is very probable that the applicant shall flee.

13. The complainant has also expressed her apprehensions regarding

her own safety, if the applicant is released on bail. The learned counsel

for the complainant has also contended that the applicant, during the

trial, had slapped a photographer in Patiala House Courts and had also

manhandled him, which demonstrates his violent tendencies and that

the appellant is such a person who should be released on bail in any

eventuality.

14. In his rejoinder, Mr.Lalit, Sr. Advocate, appearing for the

applicant, has submitted that the order in Cr.M.B. No.1381/2008 had

been reserved on 25.03.2009, though it was pronounced on

07.08.2009. He further submits that the application under Section 391

Cr. P.C. relates only to Mr.Ajay Katara, PW-33, and not to Ms.Bharti

Singh. He also submits that no notice has been issued by the Court on

the State's appeal for enhancement of sentence as it is barred by

limitation. Only on the application seeking condonation of delay notice

has so far been issued. He submits that no notice has been issued on

the Criminal Revision Petition preferred by the complainant for

enhancement of sentence.

15. We have heard the learned counsel for the parties in detail. It

cannot be disputed that the applicant had filed a petition for

suspension of his sentence and for his release on bail being Crl.M.B

No.1381/2008 which was dismissed by a detailed order dated 7th

August, 2009. While dismissing the application of the applicant for

suspension of sentence, the Court had noted categorically that the

applicant was involved in a murder case in 1991 which was withdrawn

by the Government of U.P in 1993; he also faced trial for offences under

Section 302/201/34 of IPC in Jessica Lal murder case and while he

was on bail in the said case, the present offences were committed by the

applicant. The Court had also considered three circumstances-motive,

last seen evidence and the recoveries made at the instance of the

applicant and other relevant facts and circumstances for declining the

suspension of his sentence and his release on bail. Though at the time

his application for suspension of sentence and release him on bail was

considered he had undergone incarceration of more than seven years

and his behavior during this period was reported to be satisfactory,

however, regular suspension of sentence and release of applicant on

bail was denied.

16. The instances relied on by the applicant do not lay down that

where a convict has undergone incarceration for more than seven years,

the sentence of such a convict is to suspended and he should be or has

to be released on bail. In the precedent relied on by the applicants, the

sentence of the convicts were suspended in peculiar facts and

circumstances of those cases and on the basis of same, the applicant

cannot contend that his sentence is also liable to be suspended and he

is also liable to be enlarged on interim bail. No doubt, the Court has to

be sensitive to the need of the convict to re-connect with his family and

friends to re-establish his family ties. However, that does not mean that

in each and every case, without exception, or without regard to the

peculiar facts of the case, the Court would mechanically suspend the

sentence and release such convicts on interim bail.

17. This is no more res integra that the ratio of any decision must be

understood in the background of the facts of that case. What is of the

essence in a decision is its ratio and not every observation found

therein nor what logically follows from the various observations made in

it. It must be remembered that a decision is only an authority for what

it actually decides. It is well settled that a little difference in facts or

additional facts may make a lot of difference in the precedential value of

a decision. The ratio of one case cannot be mechanically applied to

another case without having regard to the fact situation and

circumstances obtaining in two cases. Consequently on the basis of

ratio of the cases relied on by the learned counsel for the

appellant/applicant, no inference in favor of the appellant to suspend

his sentence and release him on interim bail can be drawn.

18. A perusal of Section 389, Cr.P.C would show that suspension of

sentence during pendency of appeal is not the absolute right of the

convict. The discretion to suspend the sentence vests in the Court and

it is required to be exercised judicially keeping in view all facts and

circumstances and the nature of offence. The Court has to exercise this

discretion with utmost care and caution, balancing one's right and

liberty on one hand and the interest of the society on the other. It is for

this reason that despite the presumption of innocence being there

during appeal, the convicts in offences like murder, ransom kidnapping,

culpable homicide, rape, etc. are not granted bail in routine, though

some of them may get acquitted after final appeal. In the criminal

justice system which we have, delays have entered for various reasons

and is a fact of life. Merely because there is delay in hearing of appeals,

every person convicted by the trial Court is not let loose on the society

either during the pendency of the appeal or even for short period.

19. In order to decide whether the applicant sentence has to be

suspended or not and whether he is entitled to be released on interim

bail, a number of circumstances have to be considered which inter-alia

are the past conduct of the convict, whether the convict has exploited

the liberty granted to him; nature of offence; whether his similar prayer

for suspension of sentence and his release on bail has been declined or

not; whether the release of the convict is absolutely essential for

performing certain ceremonies and various other facts and

circumstances which are peculiar to each case. The fact that the

appellant committed the offence of murder of Nitish Katara and other

offences when he was on bail in the murder case of Jessica Lal, cannot

be brushed aside lightly. The learned counsel for the appellant has very

vehemently contended that the appellant has undergone his sentence in

Jessica Lal murder case and he was not convicted for murder but a

lesser offence, this however, will not mitigate the severity of the act of

the applicant of committing the murder of Nitish Katara when he had

been released on bail in that case. The confidence reposed by the Court

in releasing him on bail in another case was not sustained and honored

by the applicant and this fact cannot be construed lightly.

20. The learned counsel for the State had emphasized the doubt

about the affidavit of the sister of the applicant given in support of the

application of the applicant. The learned counsel for the applicant, Shri

Verma has, however, stated at the bar, that the sister of the applicant

had appeared before the Oath Commissioner in his presence and had

even signed the register of the Oath Commissioner in his presence. This

aspect in any case will not have much weightage as the State has

enquired about the marriage of the sister of the applicant and this fact

has not been disputed.

21. Considering the rival contentions and the entirety of facts and

circumstances, this Court is not inclined to suspend the sentence of the

applicant and release him on interim bail.

22. The applicant/ Vikas Yadav is, however, allowed to attend the

marriage ceremony of his sister on 1st November, 2009 at Jhankar

Garden, 555, M.G.Road, New Delhi under judicial custody subject to

following terms and conditions. According to the marriage card the

reception of barat is at 8 PM. Consequently, applicant be taken to the

venue of marriage three hours before the time of reception of barat and

he is allowed to attend the marriage ceremonies till Doli which could be

till late hours on 1st November, 2009 or till early hours of 2nd November,

2009. The custodial officials under whose custody the applicant shall

attend the marriage ceremonies of his sister are directed to be in plain

clothes. Such custodial officers and personnel shall however, be at

liberty to take such measures and use such devices and equipments at

the venue of marriage and at such other places which shall be deemed

necessary by them to ensure that the applicant does not abscond or flee

and/or assisted by any one in fleeing from judicial custody or

committing any offence in any manner while attending the marriage of

his sister under custodial parole. After the marriage ceremonies the

applicant be sent back or lodged at the appropriate Jail.

Dasti under the signatures of Court Master.

ANIL KUMAR, J.

OCTOBER 23, 2009                                       VIPIN SANGHI, J.
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