# Anees v. State of U.P

- **Citation:** (2023) 3 ILRA 1111
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-15
- **Case number:** Criminal Misc. Bail Application No. 23624of 2020
- **Bench:** Krishan Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anees-v-state-of-u-p-49782
- **Pages:** 9

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 498-A, 323 & 302 - Dowry
prohibition Act,1961 - Section 3/4 -
Indian Evidence Act, 1872 - Section 32 -
Dying declaration - dying declaration is
hearsay evidence - dying declaration
entitled to great weight - accused has no
power of cross-examination - declaration
should be of such nature as to inspire
confidence in its correctness, and that it
was not a result of tutoring or prompting
or product of imagination - stage of
adjudicating a bail application - court not
inclined to delve into the quality or
quantity of evidence but to see whether
the delinquent appears to have committed
the crime and he is entitled for bail or not
- neither rule of law nor of prudence that
dying declaration cannot be acted upon
without
corroboration.
(Para
-
17,18,19,26)

victim was a young lady - succumbed to burn
injuries sustained at the time alleged in the
F.I.R. - statements of hostile witnesses and
Autopsy report are evidence of their condition -
Contention - statement of the deceased to the
ASI and the treating doctors must pass the test
of dying declaration or not. (Para - 13 to16)
HELD:- Applicant's case not fit for grant of bail
due to the evidence, judgments, and the fact
that a young lady was set to fire in the precincts
of the place they both used to live. (Para - 27)

Bail Application rejected. (E-7)

List of Cases cited:

## Text

3 All. Anees Vs. State of U.P.
1111
(2023) 3 ILRA 1111
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.02.2023

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Misc. Bail Application No. 23624of 2020

Anees ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Syed Ali Imam, Sri Laxmi Shankar, Sri
Mohd. Umar Iqbal Khan

Counsel for the Opposite Party:
G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 498-A, 323 & 302 - Dowry
prohibition Act,1961 - Section 3/4 -
Indian Evidence Act, 1872 - Section 32 -
Dying declaration - dying declaration is
hearsay evidence - dying declaration
entitled to great weight - accused has no
power of cross-examination - declaration
should be of such nature as to inspire
confidence in its correctness, and that it
was not a result of tutoring or prompting
or product of imagination - stage of
adjudicating a bail application - court not
inclined to delve into the quality or
quantity of evidence but to see whether
the delinquent appears to have committed
the crime and he is entitled for bail or not
- neither rule of law nor of prudence that
dying declaration cannot be acted upon
without
corroboration.
(Para
-
17,18,19,26)

victim was a young lady - succumbed to burn
injuries sustained at the time alleged in the
F.I.R. - statements of hostile witnesses and
Autopsy report are evidence of their condition -
Contention - statement of the deceased to the
ASI and the treating doctors must pass the test
of dying declaration or not. (Para - 13 to16)
HELD:- Applicant's case not fit for grant of bail
due to the evidence, judgments, and the fact
that a young lady was set to fire in the precincts
of the place they both used to live. (Para - 27)

Bail Application rejected. (E-7)

List of Cases cited:

1. Uttam Vs The St. of Mah. , (2022) 8 SCC 576

2. U.O.I. Vs K.A. Najeeb , AIR (2021) SC 712

3. Kaka Singh Vs St. of M.P., AIR (1982) SC
1021

4. Smt. Paniben Vs St. of Guj. , AIR (1992) SC
1817

5. Varikuppal Srinivas Vs St. of A.P. , (2009) 2
SCC (Cri) 136

6. Munnu Raja & anr. Vs The St. of M.P. ,
(1976) 2 SCR 764

7. K. Ramachandra Reddy & anr. Vs The Public
Prosecutor , AIR (1976) SC 1994

8. Surajdeo Oza & ors. Vs St. of Bihar , AIR
(1979) SC 1505

9. St. Of U.P. Vs Madan Mohan & ors., Air
(1989) Sc 1519

10. Betal Singh Vs St. of M.P. , 1996 Scc (Cri)
624

11. Paras Yadav & ors. Vs St. Of Bihar , (1999)
Scc (Cri) 104

12. St. Of U.P. Vs Chet Ram & ors. , (1989) Scc
(Cri) 388

13. St. Of Karn. Vs Shariff , 2003 Crlj 1254 (SC)

14. Vinod Kumar Vs St. of Punj. , 2015 (2) SCC
220

15. Hussain & anr. Vs U.O.I. , (2017) 5 SCC
702

(Delivered by Hon'ble Krishan Pahal, J.)
1112 INDIAN LAW REPORTS ALLAHABAD SERIES

1. List has been revised.

2. Heard Sri Mohd. Umar Iqbal Khan,
learned counsel for the applicant and Sri
Vibhav Anand Singh, learned A.G.A. for
the State as well as perused the material
available on record.

3. The present bail application has
been filed by the applicant in Case Crime
No.2815 of 2018, under Sections 498-A,
323, 302 I.P.C. and Section 3/4 of Dowry
Prohibition Act, Police Station Loni,
District Ghaziabad, with the prayer to
enlarge him on bail.

PROSECUTION STORY:

4. As per prosecution story, the
informant lodged an FIR at Police Station
Loni, District Ghaziabad on 12.12.2018
alleging that he is a resident of town
Kandhala, District Shamli, UP and he had
married his sister to the applicant Anees as
per Muslim customs about seven years
before her death. After the marriage, the
applicant Anees and co-accused persons,
namely, Naseem, Nafees and Smt. Asgari
are stated to have subjected the deceased to
cruelty for demand of dowry and used to
beat her up every now and then. It was
learnt that applicant had an affair with
some another girl as the sister of the
informant and other family members of
Anees had seen him in a compromising
condition with the said girl. The said fact
was brought to the knowledge of family
members of the informant about two
months before the date of incident. The
applicant is stated to have confessed and
had promised that said act shall not be
repeated as such the sister of the informant
had gone with the applicant. The deceased
person was taken by the applicant to Loni
and both were residing in Aksha Masjid,
Prem Nagar, Loni. On 10.12.2018 at about
10:40 p.m., a phone call was received by
the informant stating that his sister has been
set to fire by sprinkling kerosene oil on her
by her in-laws. The informant and his
family
members
reached
at
G.T.B.
Hospital, Delhi on 11.12.2018 at about
03:00 a.m. from Punjab. The deceased
person had stated to all the family members
that the applicant and his family members
had been beating her for several days and
kerosene oil was sprinkled on her by all the
accused persons and she was set afire. It is
also stated in the FIR that there is a video
recording of the statement of his sister at
Police Chowki Loni.

RIVAL CONTENTIONS:

For Applicant:

5. Learned counsel for the applicant
has stated that the applicant has been
falsely implicated in the present case. The
trial is going on and in all four witnesses of
fact have been examined. Learned counsel
has stated that PW-1 Nadeem is the
informant and has not supported the
prosecution story and he has been declared
hostile by the public prosecutor and has
been cross-examined by him as such.
Learned counsel has stated that it has come
up in the statement of PW-1 that when he
reached the hospital he found his sister
unconscious and she had not made any
statement before them. Learned counsel has
further stated that PW-2 Ishrar has also
followed the suit and has not supported the
prosecution story. Learned counsel has also
stated that PW-3 Haqiqat is the brother-inlaw of the informant and he has also not
supported the prosecution story and has
even denied of any videographic recording
of statement of the deceased person. PW-4
Smt. Fahmida is the mother of the deceased
3 All. Anees Vs. State of U.P.
1113
person and she has also not supported the
prosecution story. Learned counsel has
stated that all these witnesses have resiled
from their earlier statements recorded by
the
Investigating
Officer.
Learned
counsel has stated that signature of the
witnesses has also been taken by the
person conducting inquest proceedings on
their statements. The said statements are
not admissible in the law as they are hit
by Section 162 Cr.P.C. Learned counsel
has stated that there is dying declaration
of the deceased person which was
recorded by ASI at G.T.B Hospital.
Learned counsel has stated that the said
statement indicates that the applicant had
sprinkled some liquid on the deceased
person and set her afire. Learned counsel
has stated that the said dying declaration
is not admissible under the Indian
Evidence Act as it has not been recorded
as per law. Learned counsel has further
stated that there is overwriting in the date
of recording of the said dying declaration
and it cannot be said that it was recorded
on 10.12.2018 itself.

6. Learned counsel has further stated
that no presumption under Section 113-B
of Indian Evidence Act can be drawn in the
present case as the marriage of the
applicant with the deceased person was
solemnized in the year, 2010 as such a
period of more than seven years has passed
till the date of offence. Even the chargesheet has been filed under Sections 498-A,
323, 302 I.P.C. and 3/4 of Dowry
Prohibition Act. Learned counsel has stated
that the trial is moving at a snail's pace and
there is no likelihood of early conclusion of
trial. The Assistant Sub-Inspector who has
recorded the said dying declaration has not
been examined by the Investigating Officer
and has not even been produced in the
court.

7. Learned counsel has stated that the
Apex Court in the case of Uttam vs. The
State of Maharashtra1 has opined as
follows:-

7. It was canvassed by the
learned counsel for the appellant that once
the High Court had rejected the written
dying declarations of the deceased on the
ground that there were several conspicuous
loopholes
in
recording
of
the
said
statements, there was no good reason for
the High Court to have relied on the oral
statements allegedly made by the deceased
to PW-2 and PW-12, which were equally
unreliable and therefore, ought to have met
the same fate as the written dying
declarations of the deceased. To buttress
his submission that where there are
multiple dying declarations and each one is
inconsistent with the other, then all the said
dying declarations ought to be discarded
without any hesitation, learned counsel has
cited Nallapati Sivaiah v. SDO [Nallapati
Sivaiah v. SDO, (2007) 15 SCC 465 :
(2010) 3 SCC (Cri) 560]. The unreliability
of an oral dying declaration made to a
family member in the absence of the doctor
was sought to be questioned by citing
Arvind Singh v. State of Bihar [Arvind
Singh v. State of Bihar, (2001) 6 SCC 407
: 2001 SCC (Cri) 1148], Arun Bhanudas
Pawar v. State of Maharashtra [Arun
Bhanudas Pawar v. State of Maharashtra,
(2008) 11 SCC 232 : (2009) 1 SCC (Cri)
112] and Poonam Bai v. State of
Chhattisgarh [Poonam Bai v. State of
Chhattisgarh, (2019) 6 SCC 145 : (2019) 2
SCC (Cri) 754].

8. On the other hand, Mr Sachin
Patil, learned counsel appearing for the
respondent State of Maharashtra has with
his
usual
vehemence,
disputed
the
arguments advanced by the other side and
1114 INDIAN LAW REPORTS ALLAHABAD SERIES
stated
that
both
the
written
dying
declarations, the first one recorded by the
IO at 3.20 p.m. and the second one
recorded by the SEM (PW-9) at 4.30 p.m.,
on the very same day, were consistent and
the deceased had clearly stated that it was
the appellant who had set her on fire. He
also alluded to the two fitness certificates
issued by the attending doctor (PW-10) in
respect of the deceased before her
statements were recorded and contended
that the said certificates showed that she
was in a sound state of mind and competent
to depose. Similarly, the oral dying
declarations subsequently made by the
deceased in the presence of her father (PW2) and the mediator (PW-12) were also
stated to be consistent with the version of
the victim and worthy of credence. The
narration as to the manner in which the
deceased was set on fire was stated to be
consistent and it was contended that the
cross-examination of the said prosecution
witnesses did not elicit anything favourable
to the appellant on the above aspect. The
learned State Counsel referred to the
Chemical Analyser Report in respect of the
clothes of the deceased and the appellant
that were seized from the spot to urge that
it lent credence to the version of the
prosecution that the appellant had poured
kerosene on the deceased and had set her
on fire.

9. In support of his submission
that where there are conflicting dying
declarations, the Court can accept one and
discard the other as long as it is satisfied
that the basic statement of the deceased
had remained consistent, the learned State
Counsel cited State of U.P. v. Veerpal
[State of U.P. v. Veerpal, (2022) 4 SCC
741 : (2022) 2 SCC (Cri) 224], Rizan v.
State of Chhattisgarh [Rizan v. State of
Chhattisgarh, (2003) 2 SCC 661 : 2003
SCC (Cri) 664] and Bhagwan Tukaram
Dange v. State of Maharashtra [Bhagwan
Tukaram Dange v. State of Maharashtra,
(2014) 4 SCC 270 : (2014) 2 SCC (Cri)
302] . The decision in Trimukh Maroti
Kirkan v. State of Maharashtra [Trimukh
Maroti Kirkan v. State of Maharashtra,
(2006) 10 SCC 681 : (2007) 1 SCC (Cri)
80] was cited to state that the onus remains
on the accused to explain how the death
had taken place within the privacy of the
home, away from public gaze.

10. We have given our thoughtful
consideration to the arguments advanced
by the learned counsel for the parties and
carefully perused the record. The entire
issue in the present case hinges on the
admissibility and evidentiary value of the
dying declarations made by the deceased,
two of which were in writing and recorded
by PW-9 and PW-14 and the other two
were oral and communicated by the
deceased to PW-2 and PW-12.

11. Dying declaration is the last
statement that is made by a person as to the
cause of his imminent death or the
circumstances that had resulted in that
situation, at a stage when the declarant is
conscious of the fact that there are virtually
nil chances of his survival. On an
assumption that at such a critical stage, a
person would be expected to speak the
truth, courts have attached great value to
the veracity of such a statement. Section 32
of the Evidence Act, 1872 (for short "the
Evidence Act") states that when a statement
is made by a person as to the cause of
death, or as to any of the circumstances
which resulted in his death, in cases in
which the cause of that person's death
comes into question, such a statement, oral
or in writing made by the deceased victim
to the witness, is a relevant fact and is
3 All. Anees Vs. State of U.P.
1115
admissible in evidence. It is noteworthy
that the said provision is an exception to
the general rule contained in Section 60 of
the Evidence Act that "hearsay evidence is
inadmissible" and only when such an
evidence is direct and is validated through
cross-examination, is it considered to be
trustworthy.

12.
In
Kundula
Bala
Subrahmanyam v. State of A.P. [Kundula
Bala Subrahmanyam v. State of A.P.,
(1993) 2 SCC 684 : 1993 SCC (Cri) 655],
this Court had highlighted the significance
of a dying declaration in the following
words : (SCC p. 697, para 18)

"18.
Section
32(1)
of
the
Evidence Act is an exception to the general
rule that hearsay evidence is not admissible
evidence and unless evidence is tested by
cross-examination, it is not creditworthy.
Under Section 32, when a statement is
made by a person, as to the cause of death
or as to any of the circumstances which
result in his death, in cases in which the
cause of that person's death comes into
question, such a statement, oral or in
writing, made by the deceased to the
witness is a relevant fact and is admissible
in evidence. The statement made by the
deceased, called the dying declaration,
falls in that category provided it has been
made by the deceased while in a fit mental
condition. A dying declaration made by
person on the verge of his death has a
special sanctity as at that solemn moment,
a person is most unlikely to make any
untrue statement. The shadow of impending
death is by itself the guarantee of the truth
of the statement made by the deceased
regarding the causes or circumstances
leading to his death. A dying declaration,
therefore, enjoys almost a sacrosanct
status, as a piece of evidence, coming as it
does from the mouth of the deceased victim.
Once the statement of the dying person and
the evidence of the witnesses testifying to
the same passes the test of careful scrutiny
of the courts, it becomes a very important
and a reliable piece of evidence and if the
court is satisfied that the dying declaration
is true and free from any embellishment
such a dying declaration, by itself, can be
sufficient for recording conviction even
without
looking
for
any
corroboration........"

8. Learned counsel has further stated
that the so called dying declaration which is
annexed as Annexure No.4 to the affidavit
filed with the bail application is not
supported by any medical certificate of
treating doctor. Learned counsel has stated
that the deceased was almost burnt more
than 90% as such was not in a position to
talk. The said statement made by the
deceased to any person is not admissible at
all.

9. Learned counsel has stated that the
period of incarceration of applicant is also
to be considered as he is languishing in jail
since 14.12.2018, i.e., more than four years.
Thus learned counsel has placed much
reliance on the judgment of the Apex Court
in the case of Union of India vs. K.A.
Najeeb2 wherein the Apex Court has
observed that "We are conscious of the fact
that the charges levelled against the
respondent are grave and a serious threat
to societal harmony. Had it been a case at
the threshold, we would have outrightly
turned down the respondent's prayer.
However, keeping in mind the length of the
period spent by him in custody and the
unlikelihood of the trial being completed
anytime soon, the High Court appears to
have been left with no other option except
to grant bail."
1116 INDIAN LAW REPORTS ALLAHABAD SERIES

10. Learned counsel has also placed
reliance on the judgment of the Apex Court
passed in the case of Kaka Singh vs. State
of Madhya Pradesh3 whereby it has been
held by the Apex Court that "Where the
deceased was unconscious and could never
make any dying declaration, the evidence
with regard to it is to be rejected".

11 . Several other submissions have
been made on behalf of the applicant to
demonstrate the falsity of the allegations
made against him. The circumstances
which, as per counsel, led to the false
implication of the applicant have also been
touched upon at length. It is also argued
that there is no criminal history of the
applicant. In case, the applicant is released
on bail, he will not misuse the liberty of
bail.

For State:

12. Per contra, learned A.G.A. has
vehemently opposed the bail application on
the ground that there is a memo attached
with the case diary and has been proved by
the PW-2 whereby it has been stated that
there was a videographic recording of the
statement of the deceased person. The said
memo is proved as Ext-Ka-5. Learned
A.G.A. has stated that it has nowhere been
stated by the prosecution that the statement
record by the ASI is dying declaration but
has stated that said statement before ASI
and even before treating doctors, namely,
Dr. Shahbaz Mansoori and Dr. Alfaraz
Mohd tantamount to dying declaration as
they have been duly recorded by them
during the course of their official duty.
Learned A.G.A. has further stated that both
the dying declarations although are in
different language contain more or less the
similar allegations against the applicant.
The truthfulness of the said statement that
tantamount to dying declaration can be
taken from the fact that only the applicant
has been implicated and not his other
family members, although the FIR is
lodged against four accused persons.
Learned A.G.A. has stated that the said
statements recorded by ASI at Guru Teg
Bahadur Hospital had been taken in Hindi
and that by doctor had been recorded in
English. Learned A.G.A. has stated that
there are no material inconsistencies in the
said dying declarations. It is settled law of
the Apex Court that conviction can be
recorded solely on the basis of dying
declaration. Learned A.G.A. has relied on
the judgment of the Apex Court in the case
of Smt. Paniben vs. State of Gujarat4
wherein all the relevant case law has been
taken into account and it has been opined
that there is neither rule of law nor of
prudence that dying declaration cannot be
acted upon without corroboration. Learned
A.G.A. has stated that merely because the
dying declaration is a brief statement, it is
not to be discarded. On the contrary, the
shortness of the statement itself guarantees
truth.

CONCLUSION:

13. The only bone of contention is as
to whether the statement of deceased to the
ASI and the treating doctors pass the test of
dying declaration or not.

14. The victim was a young lady who
has succumbed to burn injuries sustained at
the time alleged in the First Information
Report. This factum stands proved by the
statements of the hostile witnesses and the
Autopsy report.

15. The statement of the deceased is
stated to have been recorded by the ASI
which has been filed by the counsel for the
3 All. Anees Vs. State of U.P.
1117
applicant and has been disputed on the
ground that there is overwriting in the date
transcribed by its author.

16. Learned AGA has placed reliance
on another statement of the deceased which
have been recorded by the two treating
doctors and duly signed by the two family
members of the deceased. Both the
statements are to the point and brief.

17. The dying declaration is hearsay
evidence. It is settled law that though a
dying declaration is entitled to great
weight, it is worthwhile to note that the
accused
has
no
power
of
crossexamination. Such a power is essential for
eliciting the truth as an obligation of oath
could be. This is the reason the Court also
insists that the dying declaration should be
of such nature as to inspire full confidence
of the Court in its correctness. The Court
has to be on guard that the statement of the
deceased was not as a result of either
tutoring or prompting or a product of
imagination.

Case Law:

18. The Apex Court in the landmark
judgement of VARIKUPPAL SRINIVAS
v. STATE OF A.P.5 has categorically
opined as follows:

"7. This is a case where the basis
of conviction of the accused by the trial
Court was the dying declarations. The
situation in which a person is on his
deathbed, being exceedingly solemn, serene
and grave, is the reason in law to accept
the veracity of his statement. It is for this
reason that the requirements of oath and
cross-examination are dispensed with.
Besides should the dying declaration be
excluded it will result in miscarriage of
justice because the victim being generally
the only eye-witness in a serious crime, the
exclusion of the statement would leave the
Court without a scrap of evidence.

8. Though a dying declaration is
entitled to great weight, it is worthwhile to
note that the accused has no power of
cross-examination.

Such a power is essential for
eliciting the truth as an obligation of oath
could be. This is the reason the Court also
insists that the dying declaration should be
of such nature as to inspire full confidence
of the Court in its correctness. The Court
has to be on guard that the statement of the
deceased was not as a result of either
tutoring or prompting or a product of
imagination. The Court must be further
satisfied that the deceased was in a fit state
of mind after a clear opportunity to observe
and identify the assailant. Once the Court
is satisfied that the declaration was true
and voluntary, undoubtedly, it can base its
conviction
without
any
further
corroboration. It cannot be laid down as an
absolute rule of law that the dying
declaration cannot form the sole basis of
conviction unless it is corroborated. The
rule requiring corroboration is merely a
rule of prudence."

19. The Supreme Court in Munnu
Raja & Anr. Vs. The State of Madhya
Pradesh6 has opined "There is neither rule
of law nor of prudence that dying
declaration cannot be acted upon without
corroboration."

20. In K. Ramachandra Reddy and
Anr. v. The Public Prosecutor7 the Apex
Court has held "The Court has to scrutinize
the dying declaration carefully and must
ensure that the declaration is not the result
1118 INDIAN LAW REPORTS ALLAHABAD SERIES
of tutoring, prompting or imagination. The
deceased had an opportunity to observe
and identify the assailants and was in a fit
state to make the declaration."

21. The Supreme Court in Surajdeo
Oza and Ors. v. State of Bihar8 has
categorically opined as "Equally, merely
because it is a brief statement, it is not to
be discarded. On the contrary, the
shortness of the statement itself guarantees
truth."

22. Another important judgement of
the Apex Court in State of Uttar Pradesh
Vs. Madan Mohan and Ors.9 elucidates
"Where the prosecution version differs
from the version as given in the dying
declaration, the said declaration cannot be
acted upon."

23. In the case of BETAL SINGH
V/S STATE OF MP10 the Apex Court has
categorically held that in a case of Bride
burning, the Dying declaration recorded by
a police officer, can be acted upon if the
same is found to be true, coherent,
consistent, and free from any effort to
prompt the deceased to make such a
statement. The same view was expressed in
PARAS YADAV AND OTHERS V/S
STATE OF BIHAR11 and STATE OF
UTTAR PRADESH V/S CHET RAM
AND OTHERS12.

24. Another point raised by learned
counsel for applicant is that the said dying
declaration if considered so is not in the
form of question and answers. The said
contention do not find force as the Apex
Court in its judgement STATE OF
KARNATAKA V/S SHARIFF13 has held
that a Dying declaration if not recorded in
question-answer form cannot be discarded
on that ground alone. The statement
recorded in narrative form is more natural
and gives version of incident as it has been
perceived by victim.

25. From the perusal of both the
statements aka "dying declarations" it
transpires that the contents are almost the
same although the ASI has recorded it in
vernacular Hindi and the treating doctors
have done so in English. There is nothing
on record to suggest that the police or the
treating doctors had any animosity with the
applicant. The investigating officer has
fairly exonerated the accused who were
although named in FIR, but their names
were not mentioned in the statements of the
deceased person that tantamount to dying
declaration. A presumption of fair action at
the part of police and the treating doctors
must arise here.

26. At the stage of adjudicating a bail
application this court is not inclined to
delve into the quality or quantity of
evidence but to see whether the delinquent
appears to have committed the crime and
he is entitled for bail or not.

27. After hearing learned counsel for
the parties, going through the evidence on
record and also taking into consideration
the aforesaid judgments and the fact that a
young lady has been set to fire by the
applicant within the precincts of the place
they both used to live, I do not find it a fit
case for grant of bail to the applicant.

28. The bail application is found
devoid of merits and is, accordingly,
rejected.

29. However, looking to the period of
detention of the applicant, it is directed that
the aforesaid case pending before the trial
court be decided expeditiously, preferably
3 All. Vipin Vs. State of U.P.
1119
within a period of one year from the date of
production of a certified copy of this order
or as early as possible in view of the
principle as has been laid down in the
recent judgements of the Apex Court in the
cases of Vinod Kumar Vs. State of
Punjab14 and Hussain and Another vs.
Union of India15, if there is no legal
impediment.

30. It is clarified that the observations
made herein are limited to the facts brought
in by the parties pertaining to the disposal
of
bail
application
and
the
said
observations shall have no bearing on the
merits of the case during trial.
----------
(2023) 3 ILRA 1119
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.02.2023

BEFORE

THE HON'BLE AJAY BHANOT, J.

Criminal Misc. Bail Application No. 25088 of
2021

Vipin ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Jitendra Kumar Yadav, Sri Shams Uz
Zaman (A.C.)

Counsel for the Opposite Party:
G.A.

(A) Criminal Law -The Legal Services
Authorities Act, 1987 - Chapter IV -
Entitlement to legal services - Section 12
- criteria for giving legal services , Section
12(e) - "undeserved want" - right to bail
is derived from statute but cannot be
isolated from constitutional oversight -
Legal aid is an indispensable instrument
to secure the preambled objective of
justice to all citizens - distinction between
a lis - where civil rights are adjudicated &
a criminal case in which the prisoner's
personal liberty is engaged - Absence of
the counsel at a bail hearing deprives the
prisoner-applicant
of
all
ability
to
influence the outcome of a proceeding
where his personal liberty is at stake -
While deciding bails the courts have to be
cognizant of the entitlement of prisoners
to legal aid, and also alert to their right of
hearing - In the event of non appearance
of a prisoner's counsel the court may
appoint an amicus curiae to represent the
prisoner and proceed with the hearing of
the bail.(Para - 5,8,9,14,15,20)

Applicant was planted with 1 Kg. and 100
gram Charas - burnish credentials of police
authorities - no independent witness to
recovery - quantity of prohibited substance
exaggerated - no reliable forensic science
laboratory report produced - search and
seizure made in violation of NDPS Act -
criminal history explained - falsely framed in
two other cases - trial moving at a snail's
pace - law abiding citizen - cooperated with
police investigations - not responsible for
delay - not a flight risk - always cooperated
with court proceedings - Bail application -
dismissed for non-prosecution - on account
of absence of counsel.(Para -28 )

HELD:-Dismissal of a bail application for nonprosecution on account of absence of counsel is
impermissible, as it is contrary to the rights of
prisoners to legal aid under the Legal Services
Authorities
Act,
1987
and
violative
of
fundamental rights of the prisoners guaranteed
under Article 21 of the Constitution of India.
Applicant entitled to bail.(Para - 19,29)

Bail application allowed. (E-7)

List of Cases cited:

1. Ajeet Chaudhary Vs St. of U.P. , 2021 (1) ADJ
559

2. Junaid Vs St. of U.P. & anr. , 2021 (6) ADJ
511