Rupesh Kumar v. State of U.P.), Crl. Misc. Bail Application No
Case Details
HIGH COURT OF JUDICATURE AT ALLAHABAD CRIMINAL MISC. BAIL APPLICATION No. - 34626 of 2024 Ajay Kumar Bharti State of U.P. Versus .....Applicant(s) .....Opposite Party(s) Counsel for Applicant(s) Counsel for Opposite Party(s) : Mohit Singh, Nikhil Shukla, Rajesh Kumar : G.A. Court No. - 33 HON'BLE ROHIT RANJAN AGARWAL, J. 1. Heard learned counsel for the applicant and learned AGA for the State. 2. By means of this application, applicant Ajay Kumar Bharti, who is involved in Case Crime No. 46 of 2024, under Sections 419/420/467/468/471 IPC and 6/10 of U.P. Public Examination (Prevention of Unfair Means) Act, Police Station Narahi, District Ballia, seeks enlargement on bail during the pendency of trial. 3. This second bail application has been filed by the applicant for enlarging him on bail. The prosecution story, as unfolded, reveals that in the examination conducted by U.P. Police Recruitment Board for selection of Constables, in place of the applicant Ajay Kumar Bharti, one Pradhumn Kumar had appeared in the said examination, which was conducted at Intermediate College, Bharauli, Ballia on 18.02.2024. On suspicion when inquiry was made from Pradhuman Kumar, it was found that he was appearing in the said examination in place of the applicant, on the basis of forged admit and Aadhar cards. The applicant is languishing in jail since 30.04.2024.
Legal Reasoning
jails which is the primary focus of this Court in the present petition. 5. The aforesaid steps shall be taken as expeditiously as possible, preferably within two months from today. Reports shall be submitted by the Superintendent Jails to their respective Heads of the Department within the same time line for a comprehensive affidavit to be filed by each State Government/Union Territory through their respective Chief Secretaries. The affidavits shall furnish the details of the number of undertrials who would be entitled to extension of the benefit of Section 479 of the BNSS, the number of applications moved before the concerned Courts for their release and the number of undertrials actually released by the date of filing of the affidavits. 6. Compliance of the aforesaid provisions shall be made by the concerned District & Session Judges in all States/UTs who are in-Charge of the Under Trial Review Committees so that there is no laxity in implementation of the aforesaid beneficial provision." 11. In the instant case, it is an admitted position that the maximum period of punishment provided under the Act of 1998 is one year, however, Section 419 IPC provides for punishment for cheating by impersonation, i.e. whoever cheats by impersonation shall be punished with an imprisonment of either description for a term which may extend to three years or with fine or with both. While Section 420 IPC deals with cheating and dishonestly inducing delivery of property, while Section 465 IPC deals with punishment for forgery and provides a punishment with imprisonment which may extend to two years. Section 467 deals with forgery of valuable security, wills and other documents, while Section 468 IPC is in regard to forgery for the purpose of cheating and the term of punishment is extendable up to seven years. It is also a case under Section 471 IPC, which deals with using a genuine fraud (document or electronic records). 12. The FIR lodged against the applicant, prima facie, discloses that the applicant tried to clear the same by using unfair means and hired one Pradhuman Kumar to appear in the said examination in place of him. Prima facie, the offence under Section 419 IPC, which is a punishment for cheating by impersonation alongwith Section 6/10 of the Act of 1998, is made out. The maximum punishment provided under the Act of 1998 is one year, while that of Section 419 IPC is three years. 13. Thus, in view of the recent decision of Apex Court rendered on 23.8.2024 in case of In Re-Inhuman Conditions in 1382 Prisons, the beneficial provision of Section 479 BNSS has to be given precedence over Section 436-A CrPC.
Arguments
4. Learned counsel while arguing the bail application has submitted that the maximum punishment provided under Section 6/10 of The U.P. Public Examinations (Prevention of Unfair Means) Act, 1998 (hereinafter referred as the 'Act of 1998') is one year, while the applicant has almost spend the said time in jail and the trial has not commenced till date. He further submitted that the State Government has enacted the U.P. Public Examinations (Prevention of Unfair Means), Act 2024, which was enforced from 15.7.2024 wherein the maximum punishment is life imprisonment. According to him, the act as applicable on the date of offence has to be considered and not the subsequent enactment. He emphasised that once the maximum period provided under the Act of 1998 has been undergone by the applicant, he should be released on bail. Reliance has been placed upon the decision rendered by coordinate Bench of this Court in Crl. Misc. Bail Application No. 12182 of 2020 (Rupesh Kumar Vs. State of U.P.), Crl. Misc. Bail Application No. 23461 of 2024 (Aneesh Kumar Vs. State of U.P.), Crl. Misc. Bail Application No. 43226 of 2024 (Arvind Kumar Vs. State 2 BAIL No. 34626 of 2024 of U.P.) and Crl. Misc. Bail Application No. 26111 of 2024 (Rajeev Nayan Mishra @ Rahul Mishra Vs. State of U.P.). 5. Learned AGA vehemently opposed the bail application and submits that during examination for recruiting Constables in U.P. Police, which was held on 18.02.2024, applicant tried to clear the same by using unfair means and hired one Pradhuman Kumar to appear in the said examination in place of him on the basis of forged admit card and Aadhar Card, on which the photograph of applicant was pasted and thus not only the provision of the Act of 1998 but also the provision of Sections 419, 420, 465, 468 and 471 IPC are also attracted and the submission of applicant's counsel that applicant had already undergone the period prescribed under the Act of 1998 is totally wrong. 6. I have heard the respective counsel of parties and perused the material on record. 7. It is an admitted case that the applicant was apprehended on 30.4.2024. The FIR was lodged against him under Sections 419, 420, 467, 468, 471 IPC and 6/10 of U.P. Public Examinations (Prevention of Unfair Means) Act, 1998. Section 436-A of Code of Criminal Procedure, 1973 (hereinafter referred as the 'CrPC') provides for maximum period for which an under-trial prisoner can be detained, which is extracted hereasunder; "436A. Maximum period for which an undertrial prisoner can be detained. - Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties; Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties; Provided further that no such person shall in any case be detained during the period of investigation inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law. Explanation. - In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.]" 8. From reading of the aforesaid provision, it is clear that during the period of 3 BAIL No. 34626 of 2024 investigation, inquiry or trial a person not awarded with offence for which punishment of death has been specified, has undergone the detention for a period extending up to one-half of the maximum period shall be released by the court on his personal bond with or without sureties. 9. Section 479 of Bhartiya Nagrik Suraksha Sanhita, 2023 (hereinafter referred as the 'BNSS') provides for para materia provision to Section 436-A CrPC, which is the maximum period for which an under-trial prisoner can be detained. Proviso to Section 479 of BNSS provides that where a person is first time offender who has never been convicted of any offence in the past, shall be released on bond by the Court, if he has undergone detention for the period extending up to one-third of the maximum period of imprisonment specified for such offence under that law. 10. Recently, the Apex Court in Writ Petition (Civil) No. 406 of 2013, In Re- Inhuman Conditions in 1382 Prisons, on 23.8.2024 while considering the provisions of Section 436-A CrPC and 479 of BNSS held that BNSS is more beneficial wherein period undergone by first time offender was prescribed as one-third, directed for the immediate implementation of Section 479 of BNSS where the case registered against the under-trials before 1st of July 2024. Relevant paragraph nos. 2 to 6 are extracted hereasunder; "2. Having regard to the fact that the substituted provision under the BNSS is more beneficial vis-a-vis Section 436A of the Code of Criminal 1 For short 'the BNSS' Procedure, 1973, wherein the period undergone by the first time offender was prescribed as up to half of the maximum period of imprisonment specified for such an offence, this Court had called upon the learned Additional Solicitor General to obtain instructions from the Department and submit a clarification regarding application of the said provision to all undertrials across the country. 3. Today, Ms. Aishwarya Bhati, learned Additional Solicitor General, submits that pursuant to the aforesaid order, instructions have been obtained from the Department to the effect that the aforesaid provision under the BNSS shall apply to all undertrials in pending cases irrespective of whether the case was registered against them before 01 st July, 2024, the date when the newly minted legislation has come into effect. 4. In that view of the matter, it is deemed appropriate to direct immediate implementation of Section 479 of the BNSS by calling upon Superintendents of Jails across the country wherever accused persons are detained as undertrials, to process their applications to the concerned Courts upon their completion of one-half/one-third, as the case may be, of the period mentioned in sub-section (1) of the said provision, for their release on bail. This step will go a long way in easing overcrowding in 4 BAIL No. 34626 of 2024
Decision
14. In view of the above, let the applicant Ajay Kumar Bharti, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each 5 BAIL No. 34626 of 2024 in the like amount to the satisfaction of the court concerned with the following conditions, which are being imposed in the interest of justice:- (i) That the applicant shall cooperate in 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 to any police officer or tamper with the evidence. (iii) That after his release, the applicant shall not involve in any criminal activity. (iv) The identity, status and residential proof of sureties will be verified by court concerned. 15. In case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail. September 25, 2025 A. V. Singh (Rohit Ranjan Agarwal,J.) Digitally signed by :- Digitally signed by :- Digitally signed by :- AJAY VIKRAM SINGH AJAY VIKRAM SINGH AJAY VIKRAM SINGH High Court of Judicature at Allahabad High Court of Judicature at Allahabad High Court of Judicature at Allahabad