High Court
Case Details
Neutral Citation No. - 2023:AHC:113696 Court No. - 88 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11128 of 2023 Applicant :- Nikki Kashyap Opposite Party :- State of U.P. Counsel for Applicant :- Bipin Pal Singh Counsel for Opposite Party :- G.A.,Ashok Kumar Pandey Hon'ble Vikram D. Chauhan,J. 1. Learned A.G.A. submits that instructions have been received and he has no objection in case the bail application is heard on merits.
Legal Reasoning
1A. Counter affidavit filed by learned counsel for the informant, is taken on record. 2. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record. 3. It is submitted by learned counsel for the applicant that the son of the informant was missing since 03.02.2022. Initially, the missing report was lodged on 06.02.2022, however, subsequently, on application made by the brother Nishant Tyagi, first information report was lodged against the applicant and co-accused. Thereafter, statement of the informant has been recorded, who has stated that the applicant along with other co-accused have taken the victim on 03.02.2022. Learned counsel for the applicant submits that neither in the missing report or at the initial stage, the aforesaid case was set up. Subsequently, in the application was given by Nishant Tyagi, detailed statement has been given under Section 161 Cr.P.C. showing last seen evidence against the applicant. Learned counsel for the applicant submits that the aforesaid details are nothing but an after thought. The applicant has been falsely implicated in the case. 4. Learned counsel for the applicant further submits that except for the aforesaid after thought allegations, there is no other evidence against the applicant neither any incriminating articles have been recovered. It is further submitted that the applicant has no previous criminal history. Applicant is languishing in jail since 14.02.2022 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in the trial. 5. Learned counsel for the informant, Sri Satish Sharma holding brief of Sri Ashok Kumar Pandey, Advocate submits that one Manoj Tyagi is an independent witness and has seen the accused persons throwing something in the canal. He further submits that although it has not been stated that as to what has been thrown in the canal. However, the aforesaid incident is of the same date when the victim was missing. Learned counsel for the informant further submits that there is last seen evidence against the applicant. However, on a pointed query being made to the learned counsel for the informant as to why there was delay in disclosing the last seen evidence when the missing report itself was lodged on 06.02.2022, learned counsel for the informant could not give any explanation to the aforesaid delay. . 6. The accused cannot be prosecuted only on the basis of suspicion. The victim has till date not been recovered, however, evidence itself shown during investigation does not inspire confidence. 7. Learned A.G.A. for the State opposed the prayer for bail but does not dispute factual matrix of the case. 8. Learned A.G.A. has not brought any fact or circumstances to indicate criminal history or antecedents of the applicant which would disentitle the applicant for Bail. 9. It is not the case of the State that the applicant has not cooperated in the investigation or proceedings before the trial court. 10. The principle that Bail is a rule and Jail is an exception has been well recognised by Apex Court more specifically on the touch stone of Article 21 of the Constitution. The said principle has been reiterated by the Apex Court in Satyendra Kumar Antil Vs Central Bureau of Investigation and another, 2022 (10) SCC 51. Learned A.G.A. has not shown any exceptional circumstances which would warrant denial of bail to the Applicant. 11. No material, facts or circumstances has been shown by learned A.G.A. that the accused may tamper with the evidence or witnesses or the accused is of such character that his mere presence at large would intimidate the witnesses or that accused will use his liberty to subvert justice or tamper with the evidence. 12. It is settled principle of law that the object of bail is to secure the attendance of the accused at the trial. No material particulars or circumstances suggestive of the applicant fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like have been shown by learned A.G.A. for the State. 13. Learned A.G.A. for the State has not shown any material or circumstances that the accused/applicant is not entitled to bail in larger interests of the public or State. 14. Considering the facts and circumstances of the case, nature of offence, evidence, complicity of the accused, submissions of learned counsel for the parties and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed. 15. Let the applicant Nikki Kashyap involved in Case Crime No. 74 of 2022, under Section 364 I.P.C. Police Station- Modinagar, District- Ghaziabad be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:- (i). The applicant will not tamper with the evidence during the trial. (ii). The applicant will not pressurize/intimidate the prosecution witness. (iii). The applicant will appear before the trial court on the date fixed, unless personal presence is exempted and/or the applicant shall make himself available for interrogation by a police officer as and when required. (iv). The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. (v). 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 to any police officer or tamper with the evidence. (vi). The applicant shall not leave India without the previous permission of the Court. (vii). In the event, the applicant changes his residential address, he shall inform the court concerned about his new residential address in writing. 16. In case of breach of any of the above condition, the prosecution shall be at liberty to move bail cancellation application before this Court. Order Date :- 23.5.2023 Sumit Kumar Digitally signed by :- Digitally signed by :- Digitally signed by :- SUMIT KUMAR SUMIT KUMAR SUMIT KUMAR High Court of Judicature at Allahabad High Court of Judicature at Allahabad High Court of Judicature at Allahabad