In Union of India v. K.A. Najeeb
Case Details
Neutral Citation No. - 2023:AHC:123189 Court No. - 76 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 56467 of 2022 Applicant :- Kanchan Opposite Party :- State of U.P. Counsel for Applicant :- Manish Kumar Dwivedi,Shyam Babu Vaish Counsel for Opposite Party :- G.A.
Legal Reasoning
Hon'ble Nalin Kumar Srivastava,J. 1. Heard learned counsel for the applicant as well as the learned A.G.A for the State and perused the record. 2. It is submitted by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case. It is further submitted that though a specific allegation of rape has been alleged against the present accused applicant on 21.9.2018 at about 11.00 am but the prosecutrix of this case has turned hostile in the trial of the case and has not supported the prosecution version. She has specifically stated that the present accused applicant at the time of alleged incident did not enter her house and has not made any offensive act against her. She has denied all the prosecution story narrated in the FIR and her statement under Section 161 Cr.P.C. The applicant is languishing in jail since 14.11.2022 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in trial. 3. Learned AGA while opposing the bail application pressing upon the statement of the prosecutrix under Section 161 and 164 Cr.P.C. and also the statement of Lali Devi, mother-in-law of the proxecutrix under Section 161 Cr.P.C. However, could not dispute this fact that the prosecutrix herself has turned hostile and has not supported the prosecution version at all before the trial Court. 4. I have considered the rival submissions made by the learned counsel for the parties. 5. In Union of India Vs. K.A. Najeeb (2021) 3 SCC 713, the Hon'ble Apex Court has observed that:- "15. 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 v. Union of India, (1994) 6 SCC 731, 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, the 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." 6. In Sanjay Chandra vs. Central Bureau of Investigation, (2012) 1 SCC 40, the Hon'ble Supreme Court has held as under : "21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. 22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. 23. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson." 7. Keeping in view the nature of the offence, evidence, complicity of the accused, the dictum of Hon'ble Apex Court in the aforesaid cases as well as in the case of Dataram Singh vs. State of U.P. and another, (2018) 3 SCC 22 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. 8. Let the applicant Kanchan involved in Case Crime No. 689 of 2018, under Sections 376, 506 IPC, P.S. Saini, District - Kaushambi 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 following conditions. Further, before issuing the release order, the sureties be verified. (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. (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. 9. In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court. 10. It is made clear that the submissions and observations made in this order are only for deciding the bail application. Trial Court while deciding the trial will not be influenced with the same. Order Date :- 1.6.2023 Fhd Digitally signed by :- Digitally signed by :- Digitally signed by :- FAHAD NIYAZ FAHAD NIYAZ FAHAD NIYAZ High Court of Judicature at Allahabad High Court of Judicature at Allahabad High Court of Judicature at Allahabad