Aklakh vs State of U.P.

Sunil Hali, J.—Applicants Aklakh, Mohd. Jeeshan @ Janu and Bali Pandit @ Shudhansu Tripathi vide above referred applications are seeking bail in Case Crime No. 253 of 2010. under Sections 147, 148, 149, 364, 323, 504, 506, 341, 342, 34, I.P.C. and Section 7. Criminal Law Amendment Act registered at Police Station Dhoomanganj district Allahabad. Briefly stated, facts relevant for disposal of the above bail applications are that an F.I.R. was registered on 21.5.2010 with regard to an incident dated 20.5.2010 wherein it is stated that in the intervening night of 21.5.2010 eleven persons forcibly kidnapped the brother of the complainant namely Guddu Pal (hereinafter referred to as an ''abductee''). F.I.R. reveals that accused persons came in Indica and Travera at about 11 p.m. on the pretext of seeking some information from the said abductee he was called out from his house and as soon as he stepped out : they took him in their vehicle and fled away.

The abductee is said to have been recovered from the accused persons on the next day. The cause for abduction was that the said abductee was required to appear as a witness in Case Crime No. 288 of 2007, under Sections 147, 148, 149, 364, 323, 504, 341 and 342. I.P.C. In order to avoid his evidence in the said trial and to intimidate him not to depose in the said case he was kidnapped. It has also come in the report that one of the accused Shamshad was an accused in Crime No. 288 of 2007 where the abductee was listed as an eye-witness. Motive for kidnapping was to ensure that the eye-witness should not depose in the case against the accused persons in that case. The statement of Guddu Pal was recorded u/s 161. Cr. P.C. in which he named the accused persons.

After investigation, report u/s 173 (2). Cr. P.C. was filed by the Investigating Agency in which the following evidence has come on record in respect of the allegations levelled against the applicants :

(a) That abductee was kidnapped by the accused persons to ensure that he may not depose In Case Crime No. 288 of 2007 in which he was an eye-witneess regarding abduction of Mahendra Patel:

(b) That the abductee was recovered on the next date from the Indica Car from the custody of accused applicants namely Shamshad, Aslam, Nihal and Eklakh on 21.5.2010 at 13.10 hours near Chaufatka G.T. Road, which is about two kilometres from the Dhoomanganj Police Station.

Learned counsel for the applicants has contended that the applicants have wrongly been Implicated in the aforesaid case and they are in jail since May. 2010. They are not involved in the commission of the offence. It is further stated that their bail applications have been rejected only by way of punishment. No trial in case as on date has commenced in the matter. They are involved in the offences which do not carry the punishment for death or life Imprisonment.

On the other hand stand of the respondents is that the applicants are habitual offenders and their conduct is inimical to the public at large. It is further stated that prima facie there is strong evidence against the applicants and there is probability of their being convicted for the said offences. Looking to their conduct it clearly emerges that they are in the habit of threatening the witnesses and are causing fetters in the trial.

Heard learned counsel for the parties and perused the material on record.

The principle governing the grant of bail are relatable to following things :

(i) seriousness of the allegations severity of punishment, the character of the evidence on which the charge is supposed to be sustained, tampering and intimidating the witnesses and chances of running away from the trial: and

(ii) false implication of the accused, allegations levelled not believable and the wrecking vengeance for political or business reasons.

It is to be noted that at the stage of granting bail, the Court can only go into the question as to whether a prima facie case is established against the accused. It cannot go into the evidentiary value, creditability and reliability of the witnesses. However, while examining the circumstances the character and behaviour of the accused persons is also to be examined. Character behaviour would mean position and standing of the accused. Vague allegations that the accused will tamper with the evidence, may not be a ground to refuse bail, however, if the accused is of such a character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or would tamper with the evidence, then bail shall be refused.

Law with regard to grant or refusal of bail is well-settled. The Court while granting bail should exercise Its discretion in Judicious manner and not grant bail as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind.

In the present case, what is being alleged against the accused persons is that they have tried to influence the course of trial by kidnapping the abductee in order to ensure that he may not depose in Case Crime No. 288 of 2007. Even though the applicants have been roped in u/s 364. I.P.C. but there is no allegations that the object of kidnapping the abductee was with intent to kill or murder him. As a matter of fact nothing has been shown to this Court in this regard. Even if it is assumed that what is being alleged by the prosecution that the intention was to kill the abductee the fact remains that there was no mark of injury on the body of the abductee at the time when he was recovered from the accused persons.

Prima facie evidence which has come on record is that the accused persons have kidnapped the abductee with an intention of stopping him from deposing in Case Crime No. 288 of 2007. Prima Jacie evidence also reveals that there is probability of the accused being convicted on the material so collected by the prosecution. However, there is no prima facie evidence that the accused have committed any offence u/s 364. I.P.C. it is not disputed that the applicants are involved in the offences which do not carry punishment for death or life imprisonment. There is statutory impediment in granting bail in cases where the persons are involved in offences carrying punishment for life and death. Case of the applicants is covered under the exception to Section 439. Cr. P.C. However, in cases where It is prima facie disclosed that the accused are entitled to bail on the material collected by the prosecution even then the bail cannot be granted unless certain other aspects are taken care of. The purpose of granting bail is to ensure the presence of accused during trial and in not intimidating the course of justice either by winning over the complainant or harassing the witnesses. Underlining principle is to ensure that the accused who are facing trial should not cause any fetters in the said trial either by intimidating the witnesses or winning over the complainant.

While applying the principles governing the grant of bail, it is necessary for the Courts to examine the nature and gravity of the circumstances under which the offence is committed. The existence of a prima facie case is-essential. If there is no prima facie case, there is no question of considering other circumstances. Even where a prima facie case is established the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with the evidence.

By applying this principles what has come in the present case; (a) that the accused have kidnapped the abductee in order to deter him from deposing in Case Crime No. 288 of 2007; (b) abductee was recovered on the next date from the custody of the accused persons.

I do not find any reason to withhold the bail of the applicants for what is being alleged against them. Admittedly, their applications for bail have to be considered as they are not involved in the offences carrying punishment for life or death. The only Impediment in such cases can be that the accused are tampering with the evidence as also causing fetters in the trial. Nothing in this behalf has been shown to the Court. No material has been placed by the respondents in this behalf to suggest that the accused persons have in any manner tried to influence the course of trial or intimidated the witnesses. However, there is implied insinuation that the conduct of the accused is inimical to the public at large. But mere impression in itself is not sufficient to refuse ball unless some conclusive evidence is produced before the Court in this behalf. It is also stated at Bar that the abductee in Case Crime No. 288 of 2007 has already deposed before the Court that he was not kidnapped by the accused persons in the said case. It is one more factor which weighs in favour of the applicants for grant of bail.

Courts are not oblivious to the fact that the criminal justice system has been brought to grinding halt on account of delay in concluding the trial, intimidating the witnesses and by applying force to create fear in the mind of the persons not to depose in such case. It is one of the serious issues which can be a ground for rejecting the bail. As already discussed, the character and behaviour of the accused persons in this behalf is relevant factor. If any such circumstances alongwith material is brought to the notice of the Court that the accused persons are in any way intimidating or causing fetters in the trial the Courts will be reluctant to grant ball in such matters. On vague allegations the Courts cannot refuse to exercise its discretion. In the present case, nothing has been brought to the notice of the Court by the respondents.

In view of the aforesaid discussions and considering the circumstances, the applicants named above involved in Case Crime No. 253 of 2010, under Sections 147, 148, 149, 364, 504, 506, 323, 341, 342 and 34. I.P.C. read with Section 7 of Criminal Law Amendment Act, P.S. Dhoomanganj, district Allahabad, be enlarged on bail, on each of them executing a personal bond to the tune of Rs. 50,000 alongwith two sureties each in the like amount to the satisfaction of the court concerned, subject to furnishing of an undertaking before the concerned Court:

(i) The applicants will not tamper with the evidence during the trial.

(it) The applicants will not pressurise/intimidate the prosecution witness.

(iii) The applicants will appear before the trial court on the date fixed.

(iv) The applicants will not leave the jurisdiction of the Court without prior permission of the Court.

However, in defiance of the above conditions, the prosecution would be at liberty to move application for cancellation of their bail.

The learned trial court is expected to proceed expeditiously and shall make every endeavour to conclude the trial without being influenced by an any of the observation made hereinabove.

The Courts while dealing with the bail applications are required to pass reasoned order. They are required to indicate the reasons while rejecting or accepting the bail. It is important that while dealing with such applications they are required to discuss the principles evolved by the Hon''ble Apex Court in respect of granting or refusing of the bail. Invariably, it is seen that the trial courts without discussing the principles allow or reject the bail. Such approach should be avoided.