Vishal Yadav vs State Of U.P., Through Secretary ...
2010 Latest Caselaw 177 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+              Crl.M.B. No.1571/2009 in Crl. App. No.741/2008

%                           Date of Decision: 14.01.2010

Vishal Yadav                                                 .... Appellant
                           Through Mr.   Sanjay    Jain,   Mr.   Mukesh,
                                   Advocates

                                        Versus

State of U.P.,                                       .... Respondent
Through Secretary Home
                    Through Mr. Sanjeev Bhandari, Addl. Standing
                            Counsel for the Govt. of NCT of Delhi.
                            Mr. Sakharam Singh, Sr. Advocate, Mr.
                            Sahdev Singh, Mr. Kamlendra Mishra,
                            Mr. Rajeev Dubey, Advocates for State
                            of U.P.
                            Mr. P.K. Dey, Mr. Kaushik Dey,
                            Advocates for the complainant.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

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.

*

1 This is an application by appellant/applicant Vishal Yadav for

suspending his sentence by releasing him on bail for two months on the

ground that the marriage of his sister, namely, Sarika Yadav is fixed for

20th January, 2010. It is also alleged that the engagement ceremony

was fixed for 26th December, 2009; Mata Ki Chowki is on 17th January,

2010 whereas marriage is fixed for 20th January, 2010 and Gurudwara

wedding is on 21st January, 2010. A wedding invitation card has also

been produced indicating the ceremonies for 26th December, 2009, 17th

January, 2010, 20th January, 2010 and 21st January, 2010.

2 The applicant has also contended that the reception after the

marriage ceremony is also fixed for 25th January, 2010 and Pag phera

for bride (as per custom elder brother has to bring the bride for Pag

phera) is fixed for 29th January, 2010. The applicant has sought

interim bail for two months on the ground that necessary arrangements

including financial arrangement for the marriage has to be made by him

as he is the eldest family member and the father of the applicant is no

more and the grandfather of the applicant is more than 80 years old

and is suffering from paralysis and rather needs constant care and

attention. The applicant has also pleaded that he has to do Tika,

Kanyadan etc. The applicant has also disclosed that his regular bail

application after his conviction by judgment dated 28th May, 2008 and

order dated 30th May, 2008 passed by Additional Session Judge, Patiala

House Courts, New Delhi in SC No.78/2002 arising out of case FIR

No.192/2008 has already been dismissed by order dated 7th August,

2009 passed by this Court. The applicant has also relied on the fact

that during the trial applicant was on bail for a period of two and a half

years and he did not misuse the liberty granted to him pursuant to

order dated 6th October, 2005 releasing him on bail. It is also the plea

of the applicant that he is not the main assailant and has already

undergone more than five years of sentence awarded to him.

3 An additional affidavit dated 6th January, 2010 of Sh. Vivek

Yadav, younger brother of the applicant is also filed contending inter

alia that he is the Pairokar of the applicant and applicant has to sell a

flat No.5/421, Vaishali, Ghaziabad, which is in his name for the

arrangement of the finances for the marriage and other ceremonies. On

behalf of applicant it is also asserted that the applicant has a daughter

aged eight years who also needs support from applicant who is the

oldest male member in the family. Regarding the father of the

applicant, it is stated that he died due to the mental trauma which he

was facing due to conviction of the applicant.

4 The application is contested by the State as well as the

complainant who contends that the applicant is not required to be

required to be given any indulgence as he was involved in an incident of

abusing the Inspector and misbehaving with him and he violated the

rules of provisions of Prison Act and also obstructed the official in

performing his official duties leading to recording of DD No.5A dated

13th May, 2009, Police Station Ambedkar Nagar, South East, New Delhi.

Opposing the bail plea, it has been emphasized that after committing

the murder, the applicant had absconded and was arrested in another

case in Madhya Pradesh. It is also asserted on behalf of complainant

that the applicant has a volatile and violent nature and since the

applicant has a brother Vivek Yadav, who is also the real brother of Ms.

Sarika, therefore, the marriage rituals can be performed by him and the

marriage ceremonies are not the sufficient reason for releasing the

applicant on bail. As regards funds, it is submitted that the property

was sold about a year ago for Rs.30 lakhs to one Subash Yadav and

therefore, the plea taken regarding financial arrangements is not

correct.

5 The prayer of the applicant to release him on bail is also opposed

on the ground that an application under Section 391 of the Criminal

Procedure Code filed by the co-accused is pending before the Court for

taking further evidence including the evidence of the last seen witness

Sh. Ajay Katara (PW-33) and in case the applicant is released on interim

bail, he may pressurize the witness.

6 The status report filed by Deputy Secretary (Home) reveals that

the marriage ceremony of Ms. Sarika is scheduled to be held at K.V.

Farms, Sector-5, Chiranjeev Vihar, Ghaziabad, Uttar Pradesh and

payment has been made for booking the marriage venue. The

bridegroom Sh. Navdeep s/o Sh. Kulvaran Singh was also contacted

who also admitted about his marriage with Ms. Sarika, sister of the

applicant. The applicant is stated to be resident of R-5/45, Raj Nagar,

Ghaziabad who is under custody now and therefore, a wireless message

on 22nd December, 2009 was also sent to SSP Ghaziabad for

assessment/criminal antecedents report regarding the proposed release

of the applicant on interim bail.

7 Pursuant to the orders passed by this Court a status report has

also been filed by the state of U.P. stipulating that the engagement

ceremony was fixed for 26th December, 2009 which was however

postponed on account of demise of the father of the applicant however

another ceremony is fixed for 17th January, 2010 and other ceremonies

are also fixed for the dates as has been disclosed by the applicant. The

report indicates that the State of U.P has no objection but only wants

that on participation of the applicant in the ceremonies pertaining to

her sister's marriage, local Police be permitted to be present for the

purpose of security.

8 Regarding the incident of alleged assault on a Police Officer and

preventing him in discharging his official duty leading to recording of

DD No.5A dated 30th May, 2009, it has been asserted on behalf of

applicant that the incident of DD entry has been manipulated as the

order on the regular bail application of the applicant was reserved on

25th March, 2009 and the application for regular bail was rejected on 7th

August, 2009. It has been emphasized that nothing was found against

the applicant and therefore not case has been registered for any offence.

Since the date of alleged incident on 30th May, 2009 no action has been

taken nor there is any other allegation of misbehavior against the

applicant.

9 The nominal role in respect of applicant has also been produced

dated 26th December, 2009 reflecting satisfactory conduct of the

applicant in the Jail and that the applicant has already undergone five

years, two months and forty days incarnation as on 26th December,

2009.

10 Though suspension of sentence during the pendency of appeal

even for a short period is not the absolute right of the convict, however,

the discretion to suspend can be exercised by the Courts keeping in

view the 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. In order to decide whether the applicant's sentence is liable

to be suspended temporarily for some period so that he may participate

in the marriage of his younger sister, number of factors 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 usually peculiar to every case.

11 Though after committing the offence the petitioner had absconded

and was arrested in another case from Madhya Pradesh, however,

during the pendency of the trial, the applicant was released on bail.

During the period when he was on bail nothing adverse has been shown

that he misused the liberty granted to him. The conduct of the

applicant in the prison is also reflected to be satisfactory. On the basis

of the alleged DD entry pursuant to which no action has been taken

against the applicant, it will be difficult to infer that the applicant is

likely to exploit or misuse the liberty, in case it is granted to him by

suspending his sentence for a short period and releasing him on bail.

12 Regarding the apprehension that an application under Section

391 of the Criminal Procedure Code is pending on behalf of the co-

accused including for recording further evidence of PW-33 Sh.Ajay

Katara, the apprehension can be countered by putting conditions on

the applicant not to contact the said witness in any manner.

13 Regarding the allegation of the complainant that the property

No.5/421, Vaishali, Ghaziabad has already been sold, it is contended by

the learned counsel for the applicant on instructions that the property

was sold in 2008 to Sh. Subhash. The learned counsel for the

complainant has contended that Sh. Subhash is the person who has

allegedly conducted an alleged sting operation against PW-33 last seen

witness Ajay Katara and the application for further evidence is pending.

14 Taking into consideration, all the facts and circumstances this

Court is of the view that it would be appropriate to suspend the

sentence of the applicant till 31st of January, 2010 from the date the

applicant shall be released on bail, on furnishing a personal bond for a

sum of Rs.1 lakh with two sureties of the like amount to the satisfaction

of the Registrar General of this Court. The applicant shall surrender

before the concerned authorities after the expiry of his period of

suspension of sentence on 31st January, 2010. During the period of

release of the applicant on interim bail, the applicant shall remain

within the union territory of Delhi and within District Ghaziabad and

shall report to the local Police Station on every alternate day. He would

not meet any of the witnesses including Sh.Ajay Katara (PW.33) during

this period.

15 Copies of this order be given dasti to the counsel for the parties

under the signatures of the Court Master.

ANIL KUMAR, J.

January 14, 2010                               MOOL CHAND GARG, J.
'J'