# Kuldeep v. State of U.P

- **Citation:** (2022) 7 ILRA 513
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-18
- **Case number:** Criminal Misc. Bail Application No. 8561 of 2019
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kuldeep-v-state-of-u-p-48905
- **Pages:** 6

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 439 - Indian
Penal Code, 1860-Sections 498-A, 304-B &
302 - Dowry Prohibition Act, 1961-Section
3⁄4-application-allowed-applicantremained
in jail for 6 years yet trial not concludedout of 18 prosecution witnesses only two
were examined-wife of the applicant and
the
daughter
were
died-no
criminal
history - the role of accused is quite
different from his father and mother-the
applicant cannot seek parity - However, in
the wake of heavy pendency of cases in
the courts, there is no likelihood of any
early
conclusion
of
trial-Hence,
the
applicant is released on bail. (Para 1 to
18)

B. It was held by the Apex Court in
numerous judgments that under-trials
cannot indefinitely be detained pending
trial. no person ought to suffer adverse
consequences of his acts unless the same
is established before a neutral arbiterCourts are tasked with deciding whether
an individual ought to be released pending
trial or not. Once it is obvious that a timely
trial would not be possible and the
accused has suffered incarceration for a
significant period of time, Courts would
ordinarily be obligated to enlarge them on
bail.(Para 9)

The application is allowed. (E-6)

List of cases cited:

## Text

7 All. Kuldeep Vs. State of U.P.
513
court to treat such default as abuse of
liberty of bail and proceed against him in
accordance with law.
----------
(2022)07ILR A513
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.07.2022

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Misc. Bail Application No. 8561 of 2019

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

Counsel for the Applicant:
Mrs. Suniti Sachan, Divya Tripathi

Counsel for the Opposite Party:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 439 - Indian
Penal Code, 1860-Sections 498-A, 304-B &
302 - Dowry Prohibition Act, 1961-Section
3⁄4-application-allowed-applicantremained
in jail for 6 years yet trial not concludedout of 18 prosecution witnesses only two
were examined-wife of the applicant and
the
daughter
were
died-no
criminal
history - the role of accused is quite
different from his father and mother-the
applicant cannot seek parity - However, in
the wake of heavy pendency of cases in
the courts, there is no likelihood of any
early
conclusion
of
trial-Hence,
the
applicant is released on bail. (Para 1 to
18)

B. It was held by the Apex Court in
numerous judgments that under-trials
cannot indefinitely be detained pending
trial. no person ought to suffer adverse
consequences of his acts unless the same
is established before a neutral arbiterCourts are tasked with deciding whether
an individual ought to be released pending
trial or not. Once it is obvious that a timely
trial would not be possible and the
accused has suffered incarceration for a
significant period of time, Courts would
ordinarily be obligated to enlarge them on
bail.(Para 9)

The application is allowed. (E-6)

List of cases cited:

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

2. Paras Ram Vishnoi Vs The Director, CBI, CRLA
No. 693 of 2021 (Arising out of SLP (Crl) No.
3610 of 2020

3. Gokarakonda Naga Saibaba Vs St. of Mah.
(2018) 12 SCC 505

4. Kamal Vs St. of Har. (2004) 13 SCC 526

5. Takht Singh Vs St. of M.P. (2001) 10 SCC 463

6. Dataram Singh Vs St. of U.P. & anr. (2018) 3
SCC 22
(Delivered by Hon'ble Shamim Ahmed, J.)

1. This case is taken up in the revised
call.

2. Heard Ms. Divya Tripathi, learned
counsel for the applicant, Sri Anirudha
Singh, learned A.G.A.-I for the State and
perused the record.

3. The applicant, Kuldeep, has moved
this second bail application seeking bail in
Case Crime No.189 of 2016, under
Sections 498-A, 304-B, 302 I.P.C. and
Section 3/4 of Dowry Prohibition Act,
Police Station Achalganj, District Unnao.

4. The first bail application was
rejected by Hon'ble Mr. Justice Karunesh
Singh Pawar vide order dated 16.04.2019
passed in Criminal Misc. Case No. 3503
(B) of 2017. This second bail application
514 INDIAN LAW REPORTS ALLAHABAD SERIES
has been placed before this regular Bench
in the light of Hon'ble The Chief Justice's
order dated 20.10.2021 as the instant bail
application has been released by Hon'ble
Karunesh Singh Pawar, J.

5. While rejecting the first bail
application on 16.04.2019, a co-ordinate
Bench of this Court was pleased to observe
as under:

"Heard learned counsel for the
applicant, learned AGA for the State and
perused the record.

The contention of the learned
counsel for the applicant is that the
applicant is falsely implicated in the
present case. There was no demand of
dowry made by the applicant from his wife.
It is contended that there is no evidence to
prove the said allegations made in the FIR
regarding the demand of dowry and the
cruelty that has been alleged in the FIR
thus, the FIR is false. The postmortem
report as well as the statement of witnesses
does not supported the case of prosecution.
The deceased has committed suicided as
she was depressed and the applicant and
his family members have no role in the
alleged incident. There is no previous
criminal history of the applicant. The
applicant is in jail since August, 2016 and
the applicant will not misuse the liberty if
he is enlarged on bail. It is lastly contended
that the co-accused mother and father of
the applicant have been granted bail by this
Court which is annexed as Annexure-5 to
this bail application.

Learned
counsel
for
the
complainant and learned A.G.A. opposed
the prayer for bail and has submitted that
parity with the bail order of mother and
father cannot be claimed by the present
accused-applicant and their bail were
granted on different ground which are not
available to the present accused-applicant
(husband). It is contended that there are
antemortem injuries one bite mark and
another is abraded contusion apart from
ligature
mark
which
has
not
been
explained. It is a heinous offence, both the
wife of the applicant and the daughter were
died. In this case under Section 304B IPC,
the burden of proof is on the accusedapplicant.
The
applicant-accused
has
miserably failed to give any explanation of
murder of both the deceased wife and
minor daughter. The statement of Neetu
Gupta, the complainant corroborates the
prosecution story. The mother of the
deceased
has
also
corroborates
the
prosecution story.

The learned counsel for the
applicant submitted that deceased family
members i.e., Ritu (sister), Amit (brother),
Ram Sevak (uncle) and Raja Ram (another
uncle) had also committed sucide and Ram
Swaroop (father) has also died due to
heavy consumption of alcohol. Therefore,
the deceased was having a family history of
suicide.

In reply to this, the learned AGA
has submitted that it has no co-relation
with the present case and moreover the two
persons have lost their life in this case i.e.,
one is deceased Rajani and another is her
minor daughter Yashi.

Without expressing any opinion
on the merits of the case and considering
the submissions advanced, I find that no
good ground is made out for enlarging the
applicant on bail.

The bail application of the
applicant Kuldeep involved in Case Crime
7 All. Kuldeep Vs. State of U.P.
515
No. 189 of 2016, under Section 498A,
304B, 302 IPC and 3/4 Dowry Prohibition
Act, Police Station Achalganj, District
Unnao is, accordingly, rejected. "

6. Learned counsel for the applicant
has submitted that three years period have
been
passed
from
the
order
dated
16.04.2019 but the trial has not been
concluded.

7. Learned counsel for the applicant
has submitted that she is conscious about
the fact that this is the second bail
application, therefore, she cannot raise
those grounds which could have been taken
in the first bail application but she is
pressing the present application only on the
ground that the applicant is in jail for about
6 years yet the trial has not been concluded.

8. Apart from above submissions, the
learned counsel for the applicant also
submits that applicant is in jail since
12.08.2016 and has already undergone a
substantial period of about six years in jail
and till date trial has not yet been
concluded.

9. Learned counsel for the applicant
further submits that in compliance of
order dated 30.05.2022 passed by this
Court, she has filed the supplementary
affidavit dated 02.06.2022 which is on
record and in para 5 of the supplementary
affidavit filed in support of the bail
application it has been mentioned that out
of 18 prosecution witnesses only 02
prosecution
witnesses
have
been
examined and charge sheet has been filed
on 01.10.2016 and further submits that it
will take much time for conclusion of
trial. Therefore, in the light of the dictum
of the Hon'ble Apex Court in re; Union
of India vs. K.A. Najeeb reported in
AIR 2021 Supreme Court 712 and
Paras Ram Vishnoi vs. The Director,
Central Bureau of Investigation passed
in Criminal Appeal No.693 of 2021
(Arising out of SLP (Crl) No.3610 of
2020), wherein it has been held that if the
accused person is in jail for substantially
long period and there is no possibility to
conclude the trial in near future, the bail
application may be considered. Besides,
learned counsel for the applicant has
referred the dictum of the Hon'ble Apex
Court
in
re;
Gokarakonda
Naga
Saibaba v. State of Maharashtra,
(2018) 12 SCC 505, wherein it has been
held that if all fact / material witnesses
have been examined, the bail application
of the accused may be considered and
they were entitled for bail. Para-16 of the
case
K.A.Najeeb
(supra)
is
being
reproduced here-in-below:-

"This Court has clarified in
numerous judgments that the liberty
guaranteed by Part III of the Constitution
would cover within its protective ambit not
only due procedure and fairness but also
access to justice and a speedy trial. In
Supreme Court Legal Aid Committee
Representing
Undertrial
Prisoners
v.
Union of India, it was held that undertrials
cannot indefinitely be detained pending
trial. Ideally, no person ought to suffer
adverse consequences of his acts unless the
same is established before a neutral
arbiter.
However,
owing
to
the
practicalities of real life where to secure an
effective trial and to ameliorate the risk to
society in case a potential criminal is left at
large pending trial, Courts are tasked with
deciding whether an individual ought to be
released pending trial or not. Once it is
obvious that a timely trial would not be
possible and the accused has suffered
incarceration for a significant period of
516 INDIAN LAW REPORTS ALLAHABAD SERIES
time, Courts would ordinarily be obligated
to enlarge them on bail."

10. The Apex Court in the case of
Paras Ram Vishnoi (supra) has observed
as under:-

"On consideration of the matter,
we are of the view that pending the trial we
cannot keep a person in custody for an
indefinite period of time and taking into
consideration the period of custody and
that the other accused are yet to lead
defence evidence while the appellant has
already stated he does not propose to lead
any evidence, we are inclined to grant bail
to the appellant on terms and conditions to
the satisfaction of the trial court."

11. In support of her contention,
learned counsel for the applicant has placed
reliance of Hon'ble Apex Court judgment
in the case of Kamal Vs. State of
Haryana, 2004 (13) SCC 526 and
submitted that the Hon'ble Apex Court was
pleased to observe in paragraph no. 2 of the
judgment as under :-

"2. This is a case in which the
appellant has been convicted u/s 304-B of
the India Penal Code and sentenced to
imprisonment for 7 years. It appears that so
far
the
appellant
has
undergone
imprisonment for about 2 years and four
months. The High Court declined to grant
bail pending disposal of the appeal before
it. We are of the view that the bail should
have been granted by the High Court,
especially having regard to the fact that the
appellant has already served a substantial
period
of
the
sentence.
In
the
circumstances, we direct that the bail be
granted to the appellant on conditions as
may be imposed by the District and
Sessions Judge, Faridabad."

12. Learned counsel for the applicant
has also placed reliance of Hon'ble Apex
Court judgment in the case of Takht Singh
Vs. State of Madhya Pradesh, 2001 (10)
SCC 463, and submitted that the Hon'ble
Apex Court was pleased to observe in
paragraph no. 2 of the judgment as under:-

"2. The appellants have been
convicted under Section 302/149, Indian
Penal Code by the learned Sessions Judge
and have been sentenced to imprisonment
for life. Against the said conviction and
sentence their appeal to the High Court is
pending. Before the High Court application
for suspension of sentence and bail was
filed but the High Court rejected that
prayer
indicating
therein
that
the
applicants can renew their prayer for bail
after one year. After the expiry of one year
the second application was filed but the
same has been rejected by the impugned
order. It is submitted that the appellants
are already in jail for over 3 years and 3
months. There is no possibility of early
hearing of the appeal in the High Court. In
the aforesaid circumstances the applicants
be released on bail to the satisfaction of the
learned Chief Judicial Magistrate, Sehore.
The appeal is disposed of accordingly."

Learned counsel for the applicant
further submits that ratio of law applicable
in aforesaid cases is also applicable in the
case of the applicant, therefore, the
applicant be enlarged on bail by this Court
sympathetically.

13.

Several
other
submissions
regarding legality and illegality of the
allegations made in the F.I.R. have also
been placed forth before the Court. The
circumstances which, according to the
counsel, led to the false implication of the
accused, have also been touched upon at
7 All. Kuldeep Vs. State of U.P.
517
length. It has been assured on behalf of the
applicant that he is ready to cooperate with
the process of law and shall faithfully make
himself available before the court whenever
required and is also ready to accept all the
conditions which the Court may deem fit to
impose upon him. The applicant undertakes
that in case he is released on bail he will
not misuse the liberty of bail and will
cooperate in trial. It has also been pointed
out that the applicant is not having any
criminal history and he is in jail since
12.08.2016 and that in the wake of heavy
pendency of cases in the courts, there is no
likelihood of any early conclusion of trial.

14. Learned A.G.A. opposed the
prayer for bail by submitting that applicant
is involved in heinous crime and further
submitted that in compliance of this Court's
order dated 04.01.2022, a communication
dated 12.01.2022 of Additional Sessions
Judge, Court No.1, Unnao was received in
the office and from perusal of the same, it
transpires
that
only
two
prosecution
witnesses were examined. The said letter is
on record.

15. On being confronted on the point
about the progress of trial and period of
incarceration of the present applicant,
learned Additional Government Advocate
has submitted that this is being a matter of
record, therefore, he has nothing to say.

16. After perusing the record in the
light of the submissions made at the Bar
and after taking an overall view of all the
facts and circumstances of this case, at the
very outset, this Court anguish towards the
poor progress of trial, the trial must have
been concluded by now and the learned
trial court is having powers to take coercive
method to conclude the trial and also armed
with the provisions of Section 309 Cr.P.C.,
therefore,
this
Court
is
unable
to
comprehend as to how there is no good
progress in the trial, the nature of evidence,
the period of detention already undergone,
the unlikelihood of early conclusion of trial
and also the absence of any convincing
material to indicate the possibility of
tampering
with
the
evidence,
and
considering that applicant is in jail since
12.08.2016 and the trial has not yet been
concluded and out of 18 witnesses only two
witnesses have been examined as per the
communication dated 12.01.2022 of the
Additional Sessions Judge, Court No.1,
Unnao and the averment made in para 5 of
the
supplementary
affidavit
by
the
applicant as well as considering the larger
mandate
of
the
Article
21
of
the
Constitution of India and the law laid down
by the Hon'ble Apex Court in the cases of
Dataram Singh vs. State of U.P. and
another, reported in (2018) 3 SCC 22,
Union of India vs. K.A. Najeeb reported
in AIR 2021 Supreme Court 712 and
Paras Ram Vishnoi vs. The Director,
Central Bureau of Investigation passed in
Criminal Appeal No.693 of 2021 (Arising
out of SLP (Crl) No.3610 of 2020),
Gokarakonda Naga Saibaba v. State of
Maharashtra, (2018) 12 SCC 505, Kamal
Vs. State of Haryana, 2004 (13) SCC 526
and Takht Singh Vs. State of Madhya
Pradesh, 2001 (10) SCC 463, this Court is
of the view that the applicant may be
enlarged on bail.

17. The prayer for bail is granted. The
application is allowed.

18. Let the applicant, Kuldeep,
involved in Case Crime No.189 of 2016,
under Sections 498-A, 304-B, 302 I.P.C.
and Section 3/4 of Dowry Prohibition Act,
Police Station Achalganj, District Unnao,
be enlarged on bail on his executing a
518 INDIAN LAW REPORTS ALLAHABAD SERIES
personal bond and two sureties each in the
like amount to the satisfaction of the court
concerned on the following conditions :-

(i) The applicant will not make
any attempt to tamper with the prosecution
evidence in any manner whatsoever.

(ii) The applicant will personally
appear on each and every date fixed in the
court below and his personal presence shall
not be exempted unless the court itself
deems it fit to do so in the interest of
justice.

(iii) The applicant shall cooperate
in the trial sincerely without seeking any
adjournment.

(iv) The applicant shall not indulge
in any criminal activity or commission of any
crime after being released on bail.

(v) In case, the applicant misuses
the liberty of bail 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.

(vi) 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
default of this condition is deliberate or
without sufficient cause, then it shall be
open for the trial court to treat such
default as abuse of liberty of his bail and
proceed against him in accordance with
law.

(vii) The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad or certified copy issued from the
Registry of the High Court, Allahabad.

(viii)
The
concerned
Court/
Authority/
Official
shall
verify
the
authenticity of such computerized copy of the
order from the official website of High Court
Allahabad and shall make a declaration of
such verification in writing.

19. It may be observed that in the event
of any breach of the aforesaid conditions, the
court below shall be at liberty to proceed for
the cancellation of applicant's bail.

20. It is clarified that the observations,
if any, made in this order are strictly confined
to the disposal of the bail application and
must not be construed to have any reflection
on the ultimate merit of the case.

21. Being a peculiar case, the trial court
is directed to conclude the trial of this case
preferably, within a period of six months
from today without granting any unnecessary
adjournment to either parties except there is
any legal impediment or order of higher
Court.
----------
(2022)07ILR A518
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.07.2022

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Misc. Bail Application No. 13762 of
2021

Ashish Mishra @ Monu ...Applicant
Versus
State of U.P. ...Opposite Party