Akhilesh Upadhyay v. State of U.P

Court No. - 64 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36174 of 2023 Applicant :- Akhilesh Upadhyay Opposite Party :- State of U.P. Counsel for Applicant :- Rajneesh Shukla,Sr. Advocate Counsel for Opposite Party :- G.A.,R.K.Saxena Hon'ble Siddharth,J.

¶1Heard Sri V.B. Singh, learned Senior Counsel for the applicant assisted by Sri Rajneesh Shukla and Sri Prashant Singh, learned counsel for the applicant; Sri R.K. Saxena, learned counsel for the informant and learned A.G.A for the State.

¶2Counter affidavit filed today by counsel for the informant is taken on record.

¶3This is second bail application of the applicant.

¶4The first bail application of the applicant was rejected on

13.01.2023 by the coordinate Bench of this Court which is not available now.

¶5Learned Senior Counsel for the applicant submits that after the rejection of the first bail application of the applicant, only three prosecution witnesses out of 19 have been examined before the trial court. This is the first implication of the applicant. The role of putting the deceased on fire has not been assigned to the applicant. He has been assigned the role of catching hold of the neck of the deceased while co-accused, Praveen Kumar, who was assigned the role of tying legs of the deceased has been granted bail by this court vide Criminal Misc. Bail Application No. 525 of 2021. The applicant is in jail since 07.06.2020 and has no criminal history to his credit.

¶6Learned counsel for the informant, Sri R.K. Saxena, has vehemently opposed the bail application of the applicant and has submitted that the allegations against the applicant are serious. He has actively participated in the alleged crime and therefore implication under Section 147 IPC has been made. He has further submitted that the applicant does not deserves to be enlarged on bail since the trial is proceeding and will conclude soon.

¶7On the other hand learned A.G.A has opposed the prayer for bail.

¶8Keeping in view the nature of the offence, evidence, complicity of the accused; submissions of the learned counsel for the parties noted above; finding force in the submissions made by the learned counsel for the applicant; keeping view the uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under-trial having fundamental right to speedy trial; larger mandate of the Article 21 of the Constitution of India; considering the dictum of Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021; considering 5-6 times overcrowding in jails over and above their capacity by the under trials 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.

¶9Let the applicant, Akhilesh Upadhyay, involved in Case Crime No. 61 of 2020, under Sections-147, 323, 302, 342 IPC, Police Station-Baraur, District-Kanpur Dehat, be released on bail on his 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 shall not tamper with the evidence or threaten the witnesses.

(ii) The applicant 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 Court. In case of default of this condition, it shall be open for the Trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law.

(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.

(iv) In case the applicant misuses the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the Court on the date fixed in such proclamation then the Trial Court shall initiate proceedings against him in accordance with law under Section 174-A of the Indian Penal Code.

(v) The applicant 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 Cr.P.C. If in the opinion of the Trial Court absence of the applicant 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 against him in accordance with law.

¶10In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.

¶11Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

¶12Trial court is directed to conclude the trial of the applicant as expeditiously as possible preferably within a period of six months.

¶13Registrar (compliance) is directed to communicate this order to the trial Court for necessary compliance within ten days. Order Date :- 28.10.2023 Rohit High Court of Judicature at Allahabad