Akash Tiwari @ Rahul Tiwari v. State of U.P

Court No. - 76 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38498 of 2020 Applicant :- Akash Tiwari @ Rahul Tiwari Opposite Party :- State of U.P. Counsel for Applicant :- Markanday Singh,Ashok Kumar Tripathi,Hari Mohan,Prashant Kumar Singh,Rajshekhar Srivastava,Raksha Chauhan,Ram Prakash,Rishi Kant Rai,Upendra Kumar Singh Counsel for Opposite Party :- G.A.,Deepak Dubey,Dhiresh Kumar,Sandeep Kumar Sharma Hon'ble Vikram D. Chauhan,J.

¶1Learned A.G.A. 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 as per the first information report it is alleged that the applicant was an accused in previous case under Section 302 I.P.C. with regard to murder of the son of the informant. Subsequently, when the applicant was let off from jail on bail on 6.4.2020, a miss call was received by the informant and when the informant called back, the person disclosed his name as Akash Tiwari and has thereafter, abused the informant and has demanded extortion money. In the present case no amount was transferred to the applicant and the applicant has been incorrectly prosecuted under Section 386 I.P.C. At the best, offence under Section 385 385 I.P.C. would be made out against the applicant. It is further submitted by learned counsel for the applicant that the maximum punishment provided under Section 385 I.P.C. is two years and the applicant has already undergone incarceration for more than 3 years and 7 months. The applicant has explained criminal history in paragraph 7 of the supplementary affidavit. Applicant is languishing in jail since 10.4.2020 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in the trial.

¶4Sri Deepak Dubey, learned counsel for the informant opposed the prayer for bail. However, he does not dispute the fact that at best the offence under Section 385 I.P.C. would be made out.

¶5Learned A.G.A. for the State opposed the prayer for bail but does not dispute factual matrix of the case. 5A. Learned AGA 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 v. 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."

¶6In 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.

¶7In 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 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.

¶8The 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 51. Learned AGA has not shown any exceptional circumstances which would warrant denial of bail to the applicant.

¶9No material, facts or circumstances has been shown by learned AGA 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.

¶10It 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.

¶11Learned 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.

¶12Considering the facts and circumstances of the case, the fact that the applicant is languishing in jail for more than 3 years and 7 months, 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.

¶13Let the applicant Akash Tiwari @ Rahul Tiwari involved in Case Crime No.216 of 2020, under Sections 504, 507, 386 I.P.C., Police Station Meja, District Prayagraj 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 his residential address, the applicant shall inform the court concerned about new residential address in writing.

¶14In case of breach of any of the above condition, the prosecution shall be at liberty to move bail cancellation application before this Court.

¶15Considering the facts and circumstances of the case, the trial court is hereby directed to proceed expeditiously with the trial proceedings of the aforesaid case without granting unnecessary adjournments to any of the party and to conclude the trial within six months from the date of production of a certified copy of this order. In the event of non-appearance of the applicant before the trial court, the trial court is at liberty to issue coercive measures including warrant of arrest against the applicant. Order Date :- 23.11.2023 Bhaskar High Court of Judicature at Allahabad