Amit Kumar v. State of U.P

Court No. - 76 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34559 of 2023 Applicant :- Amit Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Ashutosh Singh,Vikrant Bhati Counsel for Opposite Party :- G.A.,Manoj Kumar Singh,Vijay Kumar Mahendra Hon'ble Vikram D. Chauhan,J.

¶1This is the second bail application of the applicant. The first bail application of the applicant was dismissed by order dated

4.12.2019 passed by the co-ordinate Bench of this Court in Criminal Misc. Bail Application No. 24740 of 2019.

¶2Learned 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.

¶3Heard learned counsel for the applicant and learned A.G.A. for the State and perused the record.

¶4It is submitted by learned counsel for the applicant that although this is a second bail application, however, the first bail application was withdrawn by order dated 4.12.2019 without being pressed on merits. Learned counsel for the applicant submits that in the present case the applicant is in jail since 24.4.2018 and the maximum punishment provided under the Gangster Act is 10 years and the applicant is in jail for more than five years and as such he is entitled for the benefit of Section 436-A of the Code of Criminal Procedure, 1973 as more than half of the maximum sentence provided has already been undergone by the applicant. The applicant has no criminal history. Applicant is languishing in jail since 24.04.2018 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in the trial.

¶5Learned counsel for the informant has opposed the bail application and submits that the applicant is a contract killer and as such he is not entitled to be released on bail.

¶6Learned A.G.A. for the State has opposed the prayer for bail but could not dispute the aforesaid fact and recourse of Section 436-A of the Code of Criminal Procedure, 1973.

¶7Learned AGA for the State has not brought any fact or circumstances to indicate criminal history or antecedents of the applicant which would disentitle the applicant for Bail.

¶8It is not the case of the State that the applicant has not cooperated in the investigation or proceedings before the trial court.

¶9The 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 for the State has not shown any exceptional circumstances which would warrant denial of bail to the applicant.

¶10No 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.

¶11It 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.

¶12Learned 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.

¶13It is to be seen that in the present case the applicant is in jail since 24.8.2018 and the maximum sentence provided under the Gangster Act is 10 years and the applicant has already undergone incarceration of more than five years. As per the provisions of Section 436-A of the Code of Criminal Procedure, 1973, applicant is entitled to be released on bail.

¶14Considering 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.

¶15Let the applicant-Amit Kumar involved in Case Crime No. 1245 of 2018, under Section 2/3 of U.P. Gangsters and Prevention of Anti-social Activities Act, Police Station Sector-49, NOIDA, District Gautam Budh Nagar 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.

¶16In case of breach of any of the above condition, the prosecution shall be at liberty to move bail cancellation application before this Court.

¶17So far as apprehension of learned counsel for the informant is concerned, the same can be taken care by directing the trial court to conclude the trial court proceedings within six months from the date of production of a certified copy of this order after giving opportunity of hearing to the parties. The applicant is directed to remain present before the court below and shall participate in the trial court proceedings. In the event, applicant does not appear before the trial court, the trial court would be at liberty to issue warrant against the applicant ensuring his presence. Order Date :- 6.12.2023 VMA High Court of Judicature at Allahabad