Allowed

Daya Shankar Kushwaha v. State of U.P. and Another

Allahabad HC30 Nov 2023CRLA/10577/2023

Case brief

AI extract

What is this about?

This appeal sought setting aside an order rejecting bail. Upholding Article 21 rights regarding speedy trial and overcrowding, the court set aside the bail rejection and directed the trial court to release the appellant on bail with standard conditions, avoiding any expression on case merits.

What did the court decide?

Bail granted subject to furnishing personal bond and two reliable sureties with specified undertakings regarding interference with witnesses and attendance.

Daya Shankar Kushwaha Vs State of U.P. and Another — Service and Employment | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:226058

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Court No. - 85

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Case :- CRIMINAL APPEAL No. - 10577 of 2023

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Appellant :- Daya Shankar Kushwaha Respondent :- State of U.P. and Another Counsel for Appellant :- Shikher Trivedi Counsel for Respondent :- G.A.

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Hon'ble Mayank Kumar Jain,J.

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List has been revised. Learned A.G.A. submits that notice upon the opposite party no.2 has been duly served but no one appears on his behalf.

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Heard learned counsel for the appellant, learned AGA for opposite party no.1 and perused the material placed on record.

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The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant to set aside the impugned order dated 21.06.2022 whereby the Special Judge, SC/ST Act, Kanpur Nagar has rejected the bail application of the appellant moved by him in Case Crime No. 43 of 2022, under Sections 302, 201 of IPC, and Section 3 (2) (V) of SC/ST Act, Police Station Narwal, District Kanpur Nagar.

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The case of the prosecution as per the FIR is that the brother of the informant namely Udaibhan left his house on 28.03.2022 at around 11.00 pm but he did not return. The dead body of the Udaibhan was found in the evening. It was apprehended that some unknown persons have killed the brother of the informant.

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Learned counsel for the appellant has submitted that appellant is innocent and has been falsely implicated in this case. It is submitted that appellant is not named in the FIR. It is submitted that the name of the appellant was disclosed by one Aniket Kumar. It is submitted that axe and 'bent' were recovered by the field unit from the spot. It is submitted that no recovery of axe and 'bent' is shown on the basis of disclosure of the appellant. In the postmortem report the cause of death was ascertained to be throttling. The public witnesses of the alleged recovery of shirt and slippers are discharged by the prosecution during the trial. It is also submitted that statements of two prosecution witnesses namely

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Chandrabhan (PW-1) and Ram Swaroop (PW-2) have been recorded during the trial. They stated in their statements that some unknown persons have committed the murder of the Udaibhan. In FSL report human blood was noted on axe, 'bent', shirt and slippers which is not reliable in view of judgment of Hon'ble Apex in Madhav Vs. State of Madhya Pradesh, 2021 CRI.L. J. 3902. It is a case of malicious prosecution under the provisions of S.C./S.T. Act. Applicant is languishing in jail since 02.04.2022 having no criminal history. In case, the appellant is released on bail, he will not misuse the liberty of bail.

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Per contra, learned A.G.A. has supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the appellant and submits that the allegations involved are very serious in nature but he could not point out any material to the contrary.

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In Union of India Vs. K.A. Najeeb (2021) 3 SCC 713, the Hon'ble Apex Court has observed that:-

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"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 SCC para-15 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."

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It appears from the arguments advanced by the counsel for the parties and from perusal of material on record that the trial court has not properly considered the case of the appellant. Hence, in view of above consideration, the order of rejection of bail passed by the trial court dated 21.06.2022 is, hereby, set aside.

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Having considered the submissions of the parties noted above, finding force in the submissions made by the learned counsel for the appellant; appellant being under-trial having fundamental right to speedy; larger mandate of the Article 21 of the Constitution of

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India, 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, Court is of the opinion that the appellant is entitled to be enlarged on bail.

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Let appellant, Daya Shankar Kushwaha be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

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(i) The appellant 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.

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(ii) The appellant shall not pressurize/intimidate the prosecution witnesses.

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(iii) The appellant 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 of Cr.P.C.

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(iv) The appellant 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 the trial court.

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(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel.

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(vi) The appellant shall not indulge in any criminal activity or commission of any crime after being released on bail.

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In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that absence of the appellant 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 in accordance with law.

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The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the appellant, if there is no other legal impediment.

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It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case.

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The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.

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The criminal appeal is allowed.

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Order Date :- 30.11.2023 AKT

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Digitally signed by :- ASHOK KUMAR TRIPATHI High Court of Judicature at Allahabad

Daya Shankar Kushwaha v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Daya Shankar Kushwaha v. State of U.P. and Another

Case brief

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What did the court decide?

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