Vivek Kumar v. State of U.P

Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41866 of 2023 Applicant :- Vivek Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Rajesh Kumar Mishra,Prateek Mishra Counsel for Opposite Party :- G.A.,Satyendra Vishwakarma Hon'ble Ajay Bhanot,J. By means of the second bail application the applicant has prayed to be enlarged on bail in Case Crime No.269 of 2022 at Police Station-Beeta-II Noida, District-Gautam Budh Nagar under Sections 420, 406, 506 IPC. The applicant is in jail since 29.09.2022. The first bail application of the applicant was rejected by this Court on 27.02.2023. The following arguments made by Shri Prateek Mishra, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Shri Satyendra Vishwakarma, learned counsel for the informant and Shri Paritosh Kumar Malviya, learned AGA-I from the record, entitle the applicant for grant of bail:

¶1The applicant is a law abiding citizen who cooperated with the police investigations and had joined the trial.

¶2The trial is moving at a snail's pace and is not likely to conclude anytime in the near future. The applicant is not responsible for the delay in the trial.

¶3The status report sent by the learned trial court records that the prosecution proposes to examine 5 witnesses but till date only one witness has been examined.

¶4Material witness/first informant has already been examined.

¶5Inordinate delay in concluding trial had has led to an indefinite imprisonment of the applicant without there being any credible evidence to implicate him in the offence and violates the rights of the applicant to speedy trial.

¶6Continued incarceration of the applicant will disable him from framing an effective defence strategy, gathering evidence in his support thereof and tendering the same before the learned trial court to absolve himself.

¶7The applicant does not have any criminal history apart from this case.

¶8The applicant is not a flight risk. The applicant being a law abiding citizen has always cooperated with the investigation and undertakes to cooperate with the court proceedings. There is no possibility of his influencing witnesses, tampering with the evidence or reoffending. The applicant has explained his criminal history. Learned AGA contends that the applicant has a criminal history of another case. Rejoining this issue, learned counsel for the applicant contends that the applicant is in jail. He does not have an effective pairokar. Hence, details of the case could not be obtained and stated in the bail application. However, relying on the records available with the learned AGA and the instructions received from his client, learned counsel for the applicant submits that the applicant was falsely nominated in the said case. The said case does not depict commission of heinous crime and has no bearing on the instant bail application. This Court in Prabhat Gangwar v. State of U.P. (Criminal Misc. Bail Application No.2586 of 2023) while considering the grant of enlarging an accused on bail for preparing his defence and gathering evidence to tender the same before the learned trial court for establishing his innocence held: "Nature and gravity of the offence is certainly liable to be considered by the court while considering grant of bail. The Court has also to factor the likelihood of whether the accused committed the offence while deciding a bail application. The court also has to determine in the facts of the case whether the accused needs to be set at liberty to frame his defence and gather evidence to refute the prosecution case and establish his innocence. The bail court has to examine whether continued incarceration would disable the accused from tendering an effective defence of his case. This is a demand of processual fairness in criminal jurisprudence. Setting an accused at liberty at large on this ground cannot be applied mechanically in all cases. The issue has to be considered in the facts and circumstances of each case while doing so. All relevant facts including the evidences in the record, the conduct of the accused during the investigation as well as trial have to be adverted to before a decision is made in this regard." Considering the aforesaid parameters in light of the above facts of this case, I am of the opinion that the applicant is entitled for bail. In wake of the preceding discussion and without making any observations on the merits of the case, the bail application is allowed. Let the applicant-Vivek Kumar 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 below. The following conditions be imposed in the interest of justice:-

(i) The applicant will not tamper with the evidence or influence any witness during the trial.

(ii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted. Order Date :- 12.10.2023/Ashish Tripathi High Court of Judicature at Allahabad