Delhi High Court
Vikas Yadav vs State Of U.P. And Another on 26 April, 2011
Author: M. L. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.A. No.910/2008
% Date of Decision: 26.04.2011
Vikas Yadav .... Appellant
Through Mr.Sumeet Verma and Ms.Charu
Verma, Advocates
Versus
State of U.P. and Another .... Respondents
Through Mr.Sanjeev Bhandari, Additional
Standing Counsel (Crl.) for GNCTD.
Mr. P.K. Dey and Mr. Kaushik Dey,
Advocates for the complainant.
CORAM:
HON'BLE MR. JUSTICE A. K. SIKRI
HON'BLE MR. JUSTICE M. L. MEHTA
1. Whether reporters of Local papers may be No
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?
M.L. MEHTA, J.
*
CRL.M.B. No.535/2011
1. This is an application of appellant/convict, Vikas Yadav, for
suspension of his sentence and release on interim bail for a
period of three months to enable him to attend the marriage
ceremonies including mehandi, marriage and two receptions of
his brother, Kunal Yadav. The appellant is a convict of the
offences 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 lakh 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. It is submitted by the learned counsel for the appellant/convict
that latter has undergone continuous incarceration of more than
nine years and his conduct has been quite satisfactory during all
this period. It is submitted that his grandfather is aged about 91
years and is suffering from serious ailments and has desired to
spend some valuable time with his grand-son, appellant/Vikas
Yadav. The other ground as stated above is to enable him to
attend the marriage ceremonies of his brother, Kunal Yadav.
3. With regard to the marriage ceremonies of his brother, Kunal
Yadav, it was submitted that these have started on 13th April,
2011 and will continue till 6th May, 2011. It may be noted that
on 14th April, 2011 was the ring ceremony at Hotel Hyatt
Regency, New Delhi. Vide order dated 7th April, 2011, a
custodial parole of limited period was granted to him to attend
the said ceremony. All other ceremonies, except the marriage
scheduled for 29th April, 2011, are outside Delhi. Ceremony of
Mehandi and Cocktail is at Ghaziabad on 27th April, 2011. The
two reception ceremonies are to be performed at Chandigarh
and Badayun (Uttar Pradesh) on 1st May, 2011 and 6th May, 2011
respectively. It is only the marriage, which is to be performed in
Delhi at The Umrao (Hotel & Resort), Near Rajokri Flyover, Delhi-
Jaipur Highway, N.H. 8, Delhi-110038.
4. In support of his submissions, learned counsel, Mr.Verma,
appearing for the appellant has placed reliance on the judgments
of Shakuntala Devi v. State, 1996 Crl. Law Journal 2954;
Rajesh v. State, 2006 (1) JCC 284 and Daulat v. State, 2006
(1) JCC 258. Relying on the aforesaid judgments, learned
counsel submitted that to enable the appellant to maintain ties
with his family and society, it is essential that he may be granted
interim bail particularly in view of the marriage of his brother.
5. The application is contested by the State as also by the
complainant. Learned counsel, Mr.Sanjeev Bhandari, appearing
for the State submitted that keeping in view the nature of the
offences and the conduct of the appellant and also his criminal
tendency, it was not at all safe to release him on interim bail. He
also submitted that the appellant has not come with clean hands
inasmuch as the filing of Writ Petition No.1293/2010 and
withdrawing of the same on 30th August, 2010 has not been
deliberately disclosed in the instant application. He also
submitted that a Criminal Appeal being 958/2008 for
enhancement of the sentence from life imprisonment to death
was also filed by the State and was pending consideration before
this Court. Learned counsel also submitted that on inquiry, it is
found that since both the parents of the appellant are MLAs, the
functions are likely to be attended by large number of persons of
different sections of the society. It is expected that the
gathering of the invitees will be more than 3000 and that would
provide opportunity to the appellant to flee or commit some
other offence.
6. The complainant also stated about the aggressive nature and
criminal bent of mind of the appellant. It is also stated that Ajay
Katara was one of the main witnesses of last-scene evidence and
the appellant has already filed an application under Section 391
Cr.P.C. for recalling him. In this regard, it is stated that there is
every possibility of the appellant influencing Ajay Katara in case
he was released on bail on short term. The complainant has also
expressed apprehension regarding her own safety and also that
of Ajay Katara. The complainant also submitted that the
appellant while in custody had slapped a press photographer in
Patiala House Courts.
7. We have heard the learned counsel for the parties and perused
the relevant record. As noted above, the request for attending
the ring ceremony was allowed by this Court vide its order dated
7th April, 2011. It is also noted above that all the other
ceremonies except marriage are being performed outside Delhi.
There is no denial that the functions are to be attended by large
number of persons.
8. It may be noted that earlier an application being Criminal M.B.
No.1381/2008 was filed for suspension of sentence and also for
release on bail, which came to be dismissed by this Court vide
order dated 7th August, 2009. It is noted that while dismissing
this application, this Court had also noted that the appellant was
involved in a murder case, which was subsequently withdrawn by
the Government of U.P. in 1993. The Court had also noted and
rightly so that the appellant was also involved in the case of
murder of Jessica Lal and while on bail in the said case, he
committed the offence in the present case. It is also noted that
again similar application was filed being Criminal M.B.
No.1218/2009 for suspension of sentence and release on interim
bail of the appellant for a period of one month for the marriage
ceremonies of his sister, Ms.Bharti. The said application came to
be disposed of by this Court by order dated 23rd October, 2009.
It is seen that the pleas taken in the said application were similar
as taken in the present application, namely, continuous
incarceration of long period of seven years and seven months at
that time, the desire of the grand-father to spend valuable time
with the appellant in his old age. The said application was for
the marriage ceremonies of his sister, whereas the present one is
for that of his brother, Kunal Yadav. The judgments as cited
before us were also cited before the Division Bench of this Court
at that time. There is no change of circumstances except that
the period of incarceration has increased to nine years and the
marriage being that of his brother. All the judgments cited were
considered by the Division Bench of this Court. There is no
dispute with regard to the proposition of law as laid down in the
aforesaid judgments of this Court with regard to the courts to be
sensitive to the needs of the convicts to re-connect with his
family and friends to enable him to re-establish his family ties.
But, however, the fact is that there was also no dispute that each
case was to be decided on its own facts and order of suspension
of sentence or that of release of convicts on interim bail or on
parole cannot be passed mechanically in all cases of continuous
incarceration of the convicts. There is no dispute that the State
has also filed a Criminal Appeal for enhancement of sentence of
the appellant from life imprisonment to death sentence and the
same is pending before this Court. The application under Section
391 Cr.P.C. has been filed by the appellant for recalling Ajay
Katara, who has already been examined as a witness against him
in the present case. The complainant has brought to our notice
various complaints made by Ajay Katara to the Ghaziabad Police
against the father and his other associates regarding threats and
other offences. The Police has also reported that on inquiry
made on the complaints, armed security has been provided to
Ajay Katara. The Police has also reported of pendency of large
number of cases against his father and other associates. The
conduct of the convict is one of the most relevant circumstances
for consideration for suspension of sentence or release on bail.
The facts of commission of offence of murder of Nitish Katara
while the appellant was on bail in the case of murder of Jessica
Lal and his having slapped a photographer in the court premises
and pendency of application under Section 391 Cr.P.C. cannot be
brushed aside lightly.
9. Keeping in view all these facts and also that the ceremonies are
being performed out of Delhi and are to be attended by large
number of persons of different sections of society, the
apprehension of the State and that of the complainant seem to
be well-founded. In view of this, we are not inclined to suspend
the sentence of the appellant or release him on interim bail at
this stage.
10. However, keeping in view the facts that one of the main
ceremonies, i.e., wedding is to take place in Delhi, we allow
custodial parole and permit the appellant to attend the said
ceremony of his brother, Kunal Yadav, on 29th April, 2011 at The
Umrao (Hotel & Resort), Near Rajokri Flyover, Delhi-Jaipur
Highway, N.H. 8, Delhi-110038 under the judicial custody,
subject to some terms and conditions.
11. The Barat is stated to depart at about 5.00 PM from the
residence of the appellant at New Raj Nagar, Ghaziabad, and
arrive at the venue of marriage at The Umrao (Hotel & Resort).
As per the invitation card, the dinner time at the venue is 8 PM.
Consequently, we allow the appellant to be taken to the venue of
marriage, i.e., The Umrao (Hotel & Resort), Near Rajokri Flyover,
Delhi-Jaipur Highway, N.H. 8, Delhi-110038 at about 6 PM and to
allow him to attend the marriage ceremony and remain there till
the completion of the ceremonies, which may last till late hours
of 29th April, 2011 or early hours of 30th April, 2011. The officials,
under whose custody the appellant would be taken for attending
the marriage ceremony, would remain in plain clothes. While
permitting the appellant to move around and meet all those,
whom he may desire during this period, the custodial officials
shall, however, ensure safe and secured surrounding. It is
expected from the appellant and his family members to
cooperate the custodial officials in this regard. After the
marriage ceremonies, the appellant will be taken back to the
place where he is lodged.
12. A copy of this order be give dasti under the signatures of the
Court Master of this Court.
M.L. MEHTA
JUDGE
A.K. SIKRI
April 26, 2010 JUDGE
'Dev'
