Nishar Ansari v. State of U.P

Court No. - 76 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42632 of 2023 Applicant :- Nishar Ansari Opposite Party :- State of U.P. Counsel for Applicant :- Ajay Srivastava Counsel for Opposite Party :- G.A. Hon'ble Vikram D. Chauhan,J.

¶1Learned A.G.A. for the State submits that instructions have been received and has no objection in case the bail application is heard on merits.

¶2Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

¶3It is submitted by learned counsel for the applicant that the applicant has been falsely implicated. There is no independent witness of the recovery. There is no allegation of slaughter against the applicant. The procedure for seizure as provided under the Criminal Procedure Code has not been followed.

¶4It is further submitted by learned counsel for the applicant that one cow has been recovered from the truck of the applicant. The criminal history of the applicant has been explained in paragraph no. 2 of the supplementary affidavit. Applicant is languishing in jail since 12.08.2023 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in the trial.

¶5Learned A.G.A. for the State opposed the prayer for bail but does not dispute factual matrix of the case. It is submitted that U.P. Act No. 1 of 1956 is enacted to prohibit and prevent the slaughter of cow and its progeny in Uttar Pradesh. The applicant has been found to have committed an offence under the abovementioned act.

¶6Learned AGA for the State has not shown that the applicant has been previously convicted under the provisions of U.P. Act No. 1 of 1956.

¶7No material has been shown by learned AGA for the State to demonstrate that the applicant has slaughtered or cause to be slaughtered or offer or cause to be offered for slaughter a cow, bull or bullock in any place in Uttar Pradesh. The alleged act cannot be stated to come within the ambit of section 2(d) of U.P. Act No. 1 of 1956. There is no independent witness of the recovery. Mere possession of live cow/bullock by itself cannot amount to committing, abetting, or attempting an offence under the Act No. 1 of 1956. The maximum sentence imposed by section 3 read with section 8 of U.P. Act No. 1 of 1956 is ten years.

¶8Mere transportation of the cow from one place to another within the Uttar Pradesh would not come within the ambit of Section 5 of U.P. Act No.1 of 1956. Mere transport of cow within Uttar Pradesh would not amount to committing, abetting or attempting to commit an offence under U.P. Act No. 1 of 1956. There is no independent witness of the said recovery. No fact, circumstance or material has been shown by learned AGA for the State to demonstrate that transport or offer for transport or cause to be transported of any cow, or bull or bullock, is from any place within the State to any place outside the State. The maximum sentence imposed by section 5A read with section 8 of U.P. Act No. 1 of 1956 is ten years.

¶9In view of the abovementioned, prima facie, the applicant is not guilty under the provisions of U.P. Act No. 1 of 1956.

¶10Learned AGA for the State has pointed out the criminal antecedents of the applicant. No material or circumstance has been brought to the notice of this Court with regard to tampering of evidence or intimidating of witness in previous criminal cases. In Ash Mohammad Vs. Shiv Raj Singh, (2012) 9 SCC 446, the Apex Court in para 30 has observed:- "We may hasten to add that when we state that the accused is a history-sheeter we may not be understood to have said that a history-sheeter is never entitled to bail. But, it is a significant factor to be taken note of regard being had to the nature of crime in respect of which he has been booked."

¶11In the case of Prabhakar Tewari Vs. State of U.P. and another, 2020 (11) SCC 648, the Hon'ble Supreme Court has observed that pendency of several criminal cases against an accused may itself cannot be a basis for refusal of bail.

¶12In so far as criminal antecedents of the applicant is concerned, it is not the case of the State that applicant might tamper with or otherwise adversely influence the investigation, or that he might intimidate witnesses before or during the trial. The State has also not placed any material that applicant in past attempted to evade the process of law. If the accused is otherwise found to be entitled to bail, he cannot be denied bail only on the ground of criminal history, no exceptional circumstances on the basis of criminal antecedents have been shown to deny bail to accused, hence, the Court does not feel it proper to deny bail to the applicant just on the ground that he had criminal antecedent.

¶13The 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

¶51Learned AGA has not shown any exceptional circumstances which would warrant denial of bail to the applicant.

¶14No material, facts or circumstances has been shown by learned AGA for the State 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.

¶15It 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 AGA for the State.

¶16Learned AGA 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.

¶17Considering 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.

¶18Let the applicant-Nishar Ansari involved in Case Crime No. 224 of 2023, under Sections 3/5A/8 of Cow Slaughter Act, Police Station Chandauli, District Chandauli 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 residential address, the applicant shall inform the court concerned about new residential address in writing.

¶19In 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 :- 26.10.2023 VMA High Court of Judicature at Allahabad