Allahabad High Court
Subhash vs State Of U.P. on 29 April, 2025
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:66516 Court No. - 47 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6950 of 2024 Applicant :- Subhash Opposite Party :- State of U.P. Counsel for Applicant :- Punita Pandey,Shweta Pandey Counsel for Opposite Party :- Amit Rai,G.A. Hon'ble Siddharth,J.
List has been revised.
Heard Ms. Shweta Pandey, learned counsel for the applicant as well as the learned AGA for the State and perused the material placed on record.
The instant bail application has been filed on behalf of the applicant,Subhash, with a prayer to release him on bail in Case Crime No. 1041/2023, under Sections 326A, 307 of IPC, Police Station- Kotwali City, District- Bijnor, during pendency of trial.
There are allegations against the applicant that he poured diesel over his sister-in-law and put her on fire with intention of causing her murder.
Learned counsel for the applicant has submitted that before the trial court the husband and brother-in-law, of the victim have been examined. They have turned hostile and not supported the prosecution case. The applicant has been falsely implicated in this case. He has no criminal history to his credit and is languishing in jail since13.10.2023. The trial in the aforesaid case is not likely to be concluded in near future.
Sri Sunil Bajpaei, learned counsel for informant has put in appearance on behalf the grandmother (nani) of the deceased and has submitted that the statement of the victim recorded under section 161 Cr.P.C., clearly implicates the applicant and since she died after recording of her statement, the same shall be considered as dying declaration of the deceased.
Ms. Shweta Pandey, learned counsel for applicant has placed before this Court the judgment of Apex Court in the case of Abhishek Sharma Vs. State (Govt. of NCT of Delhi (Criminal Appeal No. 1473/2011, and has relied upon paragraph 33 of the same, wherein it has been stated that since the deceased was in a position to speak up until six days prior to her death when she was put on life support, yet the non-recording of the deceased's statement in the presence of Magistrate or actual ascertainment of her fitness to make statement by doctors remains unexplained. In the present case the deceased was alive for more than two months after suffering the burn injury and was discharged from hospital to go to her house, but no statement of the victim was recorded after obtaining certificate of fitness from the doctor in the presence of Magistrate.
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.
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."
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 2024, (SC)LawSuit 677 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.
In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Order Date :- 29.4.2025 Abhishek