Allahabad High Court
Uday Sarup vs State Of Up And Another on 2 May, 2024
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:80955 Court No. - 79 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 16011 of 2024 Applicant :- Uday Sarup Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mehul Khare,Pragya Pandey,Sr. Advocate Counsel for Opposite Party :- G.A.,Mandvi Tripathi,Sanjay Kumar Yadav,Santosh Tripathi and Neutral Citation No. - 2024:AHC:81049 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13278 of 2020 Applicant :- Uday Sarup Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Mehul Khare, Pradeep Kumar Mishra, Pragya Pandey Counsel for Opposite Party :- G.A.,Mandvi Tripathi, Santosh Tripathi Hon'ble Sanjay Kumar Singh,J.
1-Heard Mr. Vinay Saran, learned Senior Counsel assisted by Mrs. Pragya Pandey, learned counsel for the applicant, Mr. Gyan Prakash, learned Senior Counsel representing the C.B.I. as well as Mr. Santosh Tripathi assisted by Mrs. Mandavi Tripathi, learned counsel for the complainant.
2-Criminal Misc. Bail Application No. 16011 of 2024 has been filed by the applicant with a prayer to release him on bail in Case Crime No. 267 of 2013 registered as RC-07(S)/2013/CBI/SC-III, under Section 376-A IPC, police station New Agra, district Agra, whereas Criminal Misc. second Bail Application No. 13278 of 2020 has been filed in the aforesaid case crime number for the release of the applicant under Sections 376, 201 IPC.
3-Both the above mentioned bail applications are arising out of same case crime number, therefore they are heard and being decided together.
4-In nutshell, relevant facts of the case, which are required to be stated for deciding these bail applications are that the victim/deceased, who was a Ph.D Student at Dayalbagh Educational Institute, Agra was found dead on 15.03.2013 at around 7:00 PM in Zoology Laboratory of the said Institute. F.I.R. of the said incident was lodged by the father of the deceased on 15.03.2013 at about 11:30 PM, under Section 302 IPC against unknown persons. In the post-mortem report dated 16.05.2013 of the deceased, twelve incised wounds were found on her body. The doctor who conducted post-mortem of the deceased found that genital organs were non gravid. No sign of rape has been indicated in the post-mortem report and in the pathology report dated 21.03.2013 also no spermatozoa was found.
4.1-On 22.04.2013 after 37 days of the incident, applicant-Uday Sarup, who at the relevant time, was student of B.Sc. and one Yashvir Sandhu, who was a Laboratory Technician in the university were arrested.
4.2-During investigation by police, on 12.07.2013 after four months' from the incident, police set up a case that one Rohit Yadav claimed himself to be an eye witness of the incident. Accordingly, on 15.07.2013 police submitted charge sheet against Yashvir Sandhu and Uday Sarup under Sections 302 and 376, 511 of IPC, on which the concerned court below took cognizance on 20.07.2013.
4.3-Thereafter, on 23.07.2013, investigation of the said case was transferred to C.B.I. and on 27.7.2013, CBI registered the FIR bearing RC No. 7(S)2013/CBI/SCIII/ND.
4.4- By order dated 10.02.2014, applicant was granted bail under Sections 302, 376 r/w 511 I.P.C. by this Court in Criminal Misc. Bail Application No. 2357 of 2013 and on 14.02.2014, he was released from jail.
4.5-During investigation by C.B.I., Rohit Yadav denied to be an eye witness of the incident, therefore C.B.I. dropped his name and after completing the investigation relying upon the CDFD Report dated 09.07.2014, submitted supplementary charge sheet under Section 173 (8) dated 31.12.2015 under Section 302, 376 and 201 IPC against the applicant.
4.6-The complainant had preferred a Special (Leave) to Appeal (Crl.) No. 4045 of 2016 before the Hon'ble Apex Court against the order dated 10.02.2014 granting bail to the applicant by the High Court, but during the pendency of the same, on the application of the complainant the applicant was taken in custody on 12.05.2016 under newly added Sections 376 and 201 IPC. Thereafter said Special Leave Petition was disposed of as having become infructuous vide order dated 09.12.2019.
4.7-Thereafter, first bail application No. 19893 of 2016 under Section 376 and 201 IPC of the applicant was rejected by Division Bench of this Court vide order dated 28.5.2018.
4.8-Here it would be relevant to mention that pursuant to administrative order dated 29.03.2018 of Hon'ble the Chief Justice, in exercise of the powers conferred under Proviso (a) of Rule 2 of Chapter V of the High Court Rules, 1952, at the time of considering the first bail application of the applicant, the matters investigated by C.B.I were cognizable by the Division Bench but said order dated 29.03.2018 was subsequently withdrawn by another order dated 06.12 2018 of Hon'ble the Chief Justice and with effect from 06.12.2018 C.B.I. matters have been made cognizable by the Single Bench. Accordingly these bail applications are listed before this Court.
4.9-On 15.1.2019, on the application of the public prosecutor, Section 376A IPC was also added and the same was challenged by the applicant in Criminal Revision No. 572 of 2019 which was allowed vide order dated 11.02.2019.
4.10-Against the said order dated 11.02.2019, informant preferred Special Leave to (Appeal) No. 2077 of 2019, in which Hon'ble Apex Court vide interim order dated 5.9.2019 directed to continue the trial of the applicant under Section 376A IPC and said S.L.P. is still pending.
4.11-On 2.6.2020, applicant has preferred the aforesaid second bail application No. 13278 of 2020 before this Court under Sections 376, 201 I.P.C. and after rejection of bail application of the applicant under Section 376A I.P.C. on 12.04.2024 by the trial Court, he preferred first Bail Application No. 16011 of 2024 under Sections 376A I.P.C.
5-Main substratum of argument of learned counsel for the applicant is that the applicant has been in jail for a total period of more than 8 and half years and after taking into custody in newly added section he is in jail since 12.5.2016, but till date his trial has not been completed. It is also pointed out that till date from the side of the applicant only five adjournments have been taken in last eight and a half years. Earlier from 12.02.2014 to 11.05.2016, the applicant was on bail and he did not misuse the liberty of bail. The applicant has no criminal history to his credit, therefore, considering the long detention of the applicant, he may be enlarged on bail. Much emphasis has been given by contending that in case applicant is not released on bail he will be deprived of leading his defence evidence in his favour. Lastly, it is submitted that the passport of the applicant has already been deposited in the Court. Now there is no chance of the applicant of fleeing away from the judicial process. Since all the prosecution witnesses have been examined, therefore now there is no occasion of tampering with the prosecution evidence and in case he is released on bail, he will not misuse the liberty of bail and will cooperate with the early disposal of the trial.
6-Placing reliance upon the following judgements of the Hon'ble Apex Court, learned counsel for the applicant further argued that the speedy trial is a legal right of the accused.
(i) Ashim alias Asim Kumar Haranath Bhattacharya alias Asim Harinath Bhattacharya alias Aseem Kumar Bhatacharya Vs. National Investigation Agency (2022) 1 SCC 695,
(ii) Union of India Vs. K.A. Najeeb, (2021) 3 SCC 731,
(iii) Chintan Vidyasagar Upadhyay Vs. State of Maharashtra, Petition for Special Leave to Appeal (Crl) No. 2543 of 2021, decided on 17.09.2021.
(iv) Paras Ram Vishnoi Vs. The Director, Central Bureau of Investigation, 2021 SCC OnLine SC 3606.
(v) Indrani Pratim Mukerjea Vs. Central Bureau of Investigation and another, 2022 SCC OnLine SC 695.
7-On the other hand learned counsel for C.B.I and learned counsel for the complainant, opposed the prayer for bail of the applicant by contending that first bail application of the applicant under Section 376 and 201 I.P.C. has already been rejected on merit by this Court vide order dated 28.05.2018 and all the prosecution witnesses have been examined. The applicant has taken 25 adjournments in last eight and a half years and the prosecution has taken 27 adjournments. Lastly relying upon the judgment of the Hon'ble Apex Court in the case of Bhagwan Singh Vs. Dilip Kumar alias Deepu alias Depak and Another, 2023 SCC OnLine SC 1059, and in the case of Prasanta Kumar Sarkar Vs. Ashis Chatterjee and Another, (2010) 14 SCC 496 it is submitted that considering the gravity of offence, bail applications of the applicant is liable to be rejected.
8-Now I proceed to deal the above noted judgments relied upon by the learned counsel for the parties.
Judgments relied on behalf of the applicant.
8.1-In Ashim alias Asim Kumar Haranath Bhattacharya alias Asim Harinath Bhattacharya alias Aseem Kumar Bhatacharya (Supra), Hon'ble Supreme held as under:
"This Court has consistently observed in its numerous judgments that the liberty guaranteed in 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 is imperative and the under trials cannot indefinitely be detained pending trial. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the Courts would ordinarily be obligated to enlarge him on bail."
" Deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21 of the Constitution of India. While deprivation of personal liberty for some period may not be avoidable, period of deprivation pending trial/appeal cannot be unduly long. At the same time, timely delivery of justice is part of human rights and denial of speedy justice is a threat to public confidence in the administration of justice."
8.2-In Union of India Vs. K.A. Najeeb (Supra) respondent-K.A. Najeeb was granted bail by the High Court under UAPA. Being aggrieved by the order of High Court granting bail to respondent, the appellant-Union of India filed appeal before the Hon'ble Supreme Court. Hon'ble Supreme Court while upholding the order of the High Court, after considering a catena of judgements on the point, held as under:
"Adverting to the case at hand, we are conscious of the fact that the charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent's prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail. An attempt has been made to strike a balance between the appellant's right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously the respondent's rights guaranteed under Part III of our Constitution have been well protected.
Yet another reason which persuades us to enlarge the Respondent on bail is that Section 43D(5) of the UAPA is comparatively less stringent than Section 37 of the NDPS. Unlike the NDPS where the competent Court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail; there is no such precondition under the UAPA. Instead, Section 43D (5) of UAPA merely provides another possible ground for the competent Court to refuse bail, in addition to the well settled considerations like gravity of the offence, possibility of tampering with evidence, influencing the witnesses or chance of the accused evading the trial by absconsion etc."
8.3-In Chintan Vidyasagar Upadhyay (Supra), the petitioner is facing trial for offences punishable under Sections 302, 396, 201, 109 and 120B read with 34 of the IPC. The application for bail filed by the petitioner was dismissed by the High Court on 21.12.2020. Aggrieved thereby, he filed Special Leave Petition. The Supreme Court after hearing the learned counsel for the parties and scrutinizing the record, while granting bail to the accused, held that the petitioner is in custody for nearly 6 years, the trial is proceedings and 28 witnesses have been examined and 12 witnesses are yet to be examined.
8.4-In Paras Ram Vishnoi (Supra), Supreme Court held as under:
"On consideration of the matter, we are of the view that pending the trial we cannot keep a person in custody for an indefinite period of time and taking into consideration the period of custody and that the other accused are yet to lead defence evidence while the appellant has already stated he does not propose to lead any evidence, we are inclined to grant bail to the appellant on terms and conditions to the satisfaction of the trial court."
8.5-In Indrani Pratim Mukerjea (Supra), the Supreme Court held that "admittedly, the petitioner has been in custody for 6-1/2 years. We do not intend to comment on the merits of the case, which might be detrimental to the interest of either the prosecution or the defence. Taking into account the fact that the petitioner has been in custody for 6-1/2 years and even if 50% of the remaining witnesses are given up by the prosecution, the trial will not complete soon, we are of the considered view that the petitioner is entitled to be released on bail."
Judgments relied on behalf of the complainant.
8.6- In the case of Bhagwan Singh (Supra) victim was alive and F.I.R. was registered for the offences punishable under Section 376 D, 384 506 IPC and for the offence under SC/ST Act as well as under POCSO Act. The statement of victim was also recorded during investigation and trial, who had disclosed everything giving vivid description of the incident. After going through the judgment, I find that said case is distinguishable on the facts of the case in hand.
8.7-In the case of Prasanta Kumar Sarkar (Supra) the facts was the old widow was found strangulated at her resident and neighbour of deceased saw the accused rushing out of the house of the deceased. High Court has granted bail to the accused by a very short order observing thus:
"Having regard to the nature of the alleged crime, we do not think that interest of investigation requires or (sic) justifies further detention of the petitioner at this stage."
8.8- Being aggrieved by the order of High Court, the complainant filed a criminal appeal before the Hon'ble Supreme Court. Hon'ble Supreme Court while setting aside the order of High Court, held as under:
"We are constrained to observe that in the instant case, while dealing with the application of the accused for grant of bail, the High Court completely lost sight of the basic principles enumerated above. The accused, in the present case, is alleged to have committed a heinous crime of killing an old helpless lady by strangulation. He was seen coming out of the victim's house by a neighbour around the time of the alleged occurrence, giving rise to a reasonable belief that he had committed the murder. We feel that under the given circumstances, it was not the stage at which bail under Section 439 of the Code should have been granted to the accused, more so, when even charges have not yet been framed. It is also pertinent to note that, as stated above, the Additional Chief Judicial Magistrate had rejected three bail applications of the accused but the High Court did not find it worthwhile to even make a reference to these orders."
In the above case, even no reason was recorded by the High Court while granting bail. This Court is also of the view that though detail discussion on merit is not required but at least order rejecting or granting bail must reflect basic reason for the same.
9-There is no dispute about the proposition of law laid down by the Hon'ble Supreme Court in the above judgments cited on behalf of the complainant, but it is well settled that every case turns on its own facts and circumstances. Even one additional or different fact may make a big difference between the conclusion in two cases, because even a single significant detail may alter the entire aspect.
10-Having heard learned counsel for the parties and examined the matter in is entirety, I find that:-
(i) F.I.R. was lodged against unknown persons.
(ii) It is also not in dispute that as per case of prosecution / C.B.I., there is no eye-witness of the incident.
(iii) In the post-mortem report of the deceased, genital organs of the deceased were found non-gravid and no sign of rape has been indicated.
(iv) Initially as per pathology report dated 21.03.2013, no spermatozoa was found in vaginal smear slide which was prepared from swab.
(v) After investigation, the police submitted charge sheet under Sections 302, 376 and 511 I.P.C. Thereafter C.B.I. submitted supplementary charge sheet under Section 302, 376 and 201 IPC. Subsequently during trial Section 376A IPC has also been added against the applicant by the trial Court.
(vi) The applicant is already on bail under Section 302 IPC vide order dated 10.02.2014 of the High Court and the said order has not been cancelled or set aside by the Hon'ble Supreme Court.
(vii) The prosecution case is mainly based on CDFD report dated 09.07.2014 and as per DNA report following two evidences have come on record against the applicant.
(a) The biological fluid (semen) present on the vaginal smear slides of the deceased is from accused Uday Sarup.
(b) Hair collected from scene of crime (2 out of 10 strands) is from accused-Uday Sarup.
(viii) The statements of all the 55 prosecution witnesses have been recorded and the case is at the defence stage. Therefore there is no issue of tampering of any witness or evidence.
(ix) The Second bail application of the applicant is pending before this Court since June 2020.
(x) Since 12.02.2014 to 11.05.2016, applicant was on bail and after submission of supplementary charge sheet by the C.B.I., he was taken in judicial custody under Sections 376 and 201 IPC and during the said period he did not misuse the liberty of bail.
(xi) As per report dated 18.03.2024 of the Trial Court also, the applicant fully co-operated with the trial.
(xii) The applicant has served more than eight years in jail.
(xiii) Prayer of bail has been sought mainly on the ground of long incarceration of the applicant in jail.
11-Since learned counsel for the applicant did not press the bail applications on merit, therefore further details discussion relating to the incident and merit of the case need not be referred to herein since the allegations of the prosecution and the defence of the accused thereto is still open to be urged by the parties in the trial Court.
12-Considering the facts and circumstances of the case as well as keeping in view the nature of the offence, evidence, complicity of the accused and submissions of the learned counsel for the parties, judgment relied upon by the learned counsel for the parties, long detention period of the applicant, conduct of the applicant that till date he has fully co-operated with the trial, there is no possibility of tampering the prosecution witnesses and reasons as noted in preceding paragraph No. 9, I am of the view that the applicant has made out a case for bail. Hence, both the above noted bail applications are hereby allowed.
13-Let the applicant-Uday Sarup, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:
(i) That the applicant shall cooperate with the expeditious disposal of the trial and shall regularly attend the court unless inevitable.
(ii) That the applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or tamper with the evidence.
(iii) That after his release, the applicant shall not involve in any criminal activity.
(iv) The applicant shall not leave the country during his trial.
(v) The identity, status and residential proof of sureties will be verified by court concerned before the release of the applicant on bail.
14-In case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of the applicant.
15-It is made clear that the observations contained in the instant order are confined to the issue of bail only and shall not affect the merit of the trial.
Order Date :- 2.5.2024 Kashifa