# Maneesh Pathak v. State of U.P

- **Citation:** (2023) 3 ILRA 1099
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-28
- **Case number:** Criminal Misc. Ist Bail Application No. 18536 of 2020
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/maneesh-pathak-v-state-of-u-p-49779
- **Pages:** 7

## Headnote

(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)

FIR lodged to rationalise a fake encounter -
staged by police authorities - No one from the
police has suffered life threatening injury -
recovered items cannot be linked to the crime -
Applicant always cooperated with investigations
and is innocent - trial moving at a snail's pace -
applicant cannot be faulted for delay - applicant
not a flight risk - always cooperated with
investigation - explained his criminal history -
convenient scapegoat for the police authorities -
Bail application - dismissed for non prosecution
- on account of absence of counsel. (Para -
28)
1100 INDIAN LAW REPORTS ALLAHABAD SERIES
HELD:-Dismissal of a bail application for non
prosecution 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:

## Text

3 All. Maneesh Pathak Vs. State of U.P.
1099
the perusal of the record that no complaint
has been moved by the said Sahab Lal to
any authority against the present applicant
in connection with the recovery of his
money given to the applicant. Further, no
application before any court has been
moved so far by opposite party no.2 to
prosecute
the
applicant.
Thus,
no
reasonable belief of being arrested exists
there.

14. It is also noteworthy that no
material in support of his plea of
entertaining reasonable belief that he is
likely to be arrested in connection with the
commission of a non-bailable offence, has
been produced on record by the applicant.
The law does not permit to knock at the
door of the Court for grant of anticipatory
bail on merely vague assertions in the
absence of any relevant material and
certainly
the
Court
will
not
grant
anticipatory bail in such a case.

15. In view of that, I find no
justification
to
allow
the
present
anticipatory bail application moved by the
applicant for want of essential ingredients
which
are
necessary
for
grant
of
anticipatory bail under Section 438 Cr.P.C.
to any person.

16. The anticipatory bail application
is accordingly rejected.
----------
(2023) 3 ILRA 1099
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.02.2023

BEFORE

THE HON'BLE AJAY BHANOT, J.

Criminal Misc. Ist Bail Application No. 18536 of
2020

Maneesh Pathak ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Amaresh Yadava, Sri Jitendra Singh, Sri
Omar Zamin (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)

FIR lodged to rationalise a fake encounter -
staged by police authorities - No one from the
police has suffered life threatening injury -
recovered items cannot be linked to the crime -
Applicant always cooperated with investigations
and is innocent - trial moving at a snail's pace -
applicant cannot be faulted for delay - applicant
not a flight risk - always cooperated with
investigation - explained his criminal history -
convenient scapegoat for the police authorities -
Bail application - dismissed for non prosecution
- on account of absence of counsel. (Para -
28)
1100 INDIAN LAW REPORTS ALLAHABAD SERIES
HELD:-Dismissal of a bail application for non
prosecution 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

3. Anil Gaur @ Sonu @ Sonu Tomar Vs St. of
U.P. , 2022 SCC OnLine AII 623

4. Saran J. in Gobardhan Singh & anr. Vs St. of
U.P. , 2013 SCC Online AII 13141

5. Syed Mahmood, J. in Queen Empress Vs
Pohpi & ors. , 1891 SCC Online AII 1

6. Khaili & ors. Vs St. of U.P. , 1981 Supp SCC
75

7. Kabira Vs St. of U.P. , 1981 Supp SCC
76

(Delivered by Hon'ble Ajay Bhanot, J.)

1. Matter is taken up in the revised
call. None appears on behalf of the
applicant to press the bail application.
Name of counsel for the applicant is shown
in the cause list.

2. The ordersheet discloses that the
counsel for the applicant has not appeared
before this Court on successive dates of
hearing in the past. Earlier the Court had
called for the status report from the trial
court as well as a report from the District
Legal Services Authority.

3. Question arises whether the bail
application should be dismissed for non
prosecution or an amicus curiae should be
appointed to represent the applicant and the
matter be heard on merits.

4. Shri Omar Zamin, learned counsel
is appointed as amicus curiae to represent
the applicant and assist the Court.

"Prison
and
the
authorities
conspire to rob each man of his dignity"1.

5. The right to bail is derived from
statute but cannot be isolated from
constitutional oversight.

6. Good authority has long entrenched
the right of an accused to seek bail in the
charter of fundamental rights assured by
the Constitution of India. A more detailed
discussion on constitutional law anchors of
right of bail which flows from Article 21 of
the Constitution of India can be seen in
Ajeet Chaudhary Vs. State of UP2 ,
Junaid Vs. State of UP. and another3
and Anil Gaur @ Sonu @ Sonu Tomar
Vs. State of UP4.

7. Constitutional moorings of the
right of bail also bring the right of fair
hearing within its ambit.

8. Legal aid is an indispensable
instrument
to
secure
the
preambled
objective of justice to all citizens. The
national capacity to deliver equal justice is
girded by the institutional ability to provide
legal aid. Legal aid was exalted as a
fundamental right by constitutional courts
even before it was vested as a statutory
right by the legislature under the Legal
Services Authorities Act. [On the issue of
legal aid and the scheme of the Legal
3 All. Maneesh Pathak Vs. State of U.P.
1101
Services Authorities Act, 1987 see Anil
Gaur (supra)].

9. Entitlement to legal services is
provided for in Chapter IV of the Legal
Services Authorities Act, 1987. Section 12
of the Legal Services Authorities Act, 1987
contains the criteria for giving legal
services. Section 12(e) of the Act is
germane to the controversy and is extracted
below:-

"Section 12 (e) - a person under
circumstances of underserved want such as
being a victim of a mass disaster, ethnic
violence, caste atrocity, flood, drought,
earthquake or industrial disaster."

10. The scope of the provision to
provide
free
legal
aid
arose
for
consideration before this Court in Anil
Gaur (supra) and was analysed thus:

"40. The eligibility criteria for
giving legal services under Section 12(e) is
broad based.

The breadth of the provision
manifests the legislative intent to reach out
to the last person at the bottom of the social
heap. The section contemplates to give
legal aid to persons who suffer from
deprivation and exclusion caused by
circumstances of want which are not of
their making.

Under
the
provision
persons
facing circumstances of "undeserved want"
become entitled for legal services. The
phrase "undeserved want" is generic in
nature. The word "such as" precedes the
examples of "undeserved want" described
in the section. The instances of "undeserved
want" depicted in the provision are
illustrative and not exhaustive, and are in
the nature of externalities i.e. adverse
circumstances over which a person has no
control and which prevent recourse to
justice.

The phrase "undeserved want" in
the statute is not a fixed concept but an
evolutionary exercise. The State Legal
Services Authority is mandated to enquire
whether the circumstances of a person
being considered for legal aid fall within
the sweep of "undeserved want".

11. The Bar is the frontline sentinel of
citizens' rights and liberties. The courts are
the last bastion of constitutional law and
justice. Judges have an oath enshrined in
the Constitution. Lawyers have a pledge
seared in their consciences to serve justice
in the nobel traditions of the legal
profession. Translated in terms of lawyers'
duties to their clients it essentially means
this. Lawyers have to diligently prepare the
briefs and vigilantly prosecute causes of
litigants before the courts.

12. In bail applications special care
has to be taken by the counsels since the
applicant is in jail and the counsel is his
sole representative before the court. Time
honoured
conventions
of
the
nobel
profession cast an unconditional duty on
the prisoner's counsel to be present at the
bail hearing. It is immaterial whether the
counsel's professional remuneration has
been paid or not. Failure of a counsel at to
turn up at a bail hearing may even
constitute a misconduct.

13. Dismissal of a lis for non
prosecution is a practice evolved by courts
over long years for efficient administration
of justice. The practice is sound and has
proved
its
efficacy
in
removing
unnecessary cases which clog the legal
1102 INDIAN LAW REPORTS ALLAHABAD SERIES
system. No litigant has a right to unlimited
draught on the time of the court. Non
appearance of counsel can also lead to an
inference that the lis does not survive, or
that a litigant does not wish to prosecute
the same. Dismissal of such cases for
default enables the judicial system to place
surviving cases in which the litigants are
interested on the courts' dockets.

14. With the dismissal of a case for
non prosecution, the lis arrives at a
terminus and is only subject to a restoration
application being filed by the litigant and
allowed by the court. It is important though
to bear in mind the distinction between a lis
where civil rights are adjudicated, and a
criminal case in which the prisoner's
personal liberty is engaged. A litigant can
elect to waive civil claims by not
prosecuting them. However, citizens cannot
relinquish their personal liberty even by
choice. Personal liberty is irrevocably
vested in every citizen by the Constitution
and the courts are its permanent guardians.

15. 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. When a bail application is dismissed
for non prosecution the prisoner's period of
detention is enlarged by default even as he
goes unrepresented and unheard before the
court.

16. Prisoners who apply for bail
often
live
in
poor
and
destitute
circumstances. On many occasions they
do not have effective pairokars who can
oversee the presence of counsels at bail
hearings.

17. The abject conditions of a large
number of forgotten prisoners were
summed up by Saran J. in Gobardhan
Singh and another v. State of U.P.5:

"This is not just an isolated
case. We realize that there are a large
number of such cases of forgotten
"nameless" prisoners who have become
"ticket numbers" and are languishing in
jails for prolonged periods of time, as
under trials (UTs) or as convicted
prisoners whose appeals are pending
almost
interminably
before
Higher
Courts, who may or may not have filed
bail applications and who have become
very old, or are ailing from an incurable
disease, or who may even have become
immobile or have lost any capacity to
commit a further crime. The complainant
(if
any)
has
lost
any
interest
in
prosecuting them or in keeping them in
jail any longer. Usually the families of
such accused have been destroyed, or
reduced to such abject poverty, as
happens
when
a
family
member
contracts a serious disease, that they
cannot pay counsel's fee or incur the
recurring unavoidable expenditures in
Court offices to get applications and
affidavits prepared or the matters listed,
and the bail or case disposed of. The
relatively
luckier
children
and
dependents may perhaps have been
provided with a roof over their heads by
a grudging relative, or they may have
been placed in a State or private run
children's home. Others may simply
have been abandoned to the street. The
daughters in the family may not have
been married off, and may be getting
exploited by some social deviant in the
family
or
outside.
Keeping
such
prisoners in jail any further, in the
already overcrowded jails, serves no
useful purpose and is an unnecessary
burden on the State and the tax payer."
3 All. Maneesh Pathak Vs. State of U.P.
1103

18. Prisoners have no remedy against
absentee counsels and little control over the
adverse situation that follows. In these
circumstances the prisoner becomes a
victim of "undeserved want" within the
meaning of Section 12 (e) of the Legal
Services Authorities Act, 1987 who is
entitled to legal aid. Refusal of legal aid to
this class of prisoners would entail denial
of justice.

19. In this wake, dismissal of a bail
application for non prosecution 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.

20. Personal liberty is the fount of all
rights. Protection of liberty is the crown of
the court process. 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.

21. The narrative can profit by
reference to authorities in point.

22. The cases discussed below arise
out of criminal appeals. However, the
principles of law enumerated therein can be
safely applied by analogy to various
criminal proceedings where the applicant is
in jail and personal liberty of the prisoner
hangs in balance.

23. The Allahabad High Court
pioneered the cause of unrepresented
prisoners in criminal proceedings in the
fabled dissent of Syed Mahmood, J. in
Queen Empress v. Pohpi and others6.

24. Duty of a counsel to appear in
cases despite non receipt of fees and
expenses and the obligation of the courts to
protect the liberty of the prisoner by
appointing
an
amicus
curiae
was
emphasized in Khaili and others Vs. State
of Uttar Pradesh7 by holding:

"1. ...But even though the fees
and expenses were not paid, the Advocate
should not, in our opinion, have refused to
argue the case. It must be remembered by
every advocate that he owes a duty to the
court, particularly in a criminal case
involving the liberty of the citizen, and
even if he has not been paid his fees or
expenses, he must argue the case and assist
the court in reaching the correct decision.
We can appreciate a situation where an
advocate may be unable to argue the case
in the absence of instructions from the
client, but non-receipt of fees and expenses
can never be a ground for refusing to argue
the case. The learned Advocate in the
present case, however, refused to argue the
case and consequently the learned Judge
went through the record of the case and
decided the appeal. Now one thing is clear
that howsoever diligent the learned Judge
might have been and however careful and
anxious to protect the interests of the
appellants, his effort could not take the
place of an argument by an advocate
appearing on behalf of the appellants. We
think that in a case such as this, what the
learned Judge should have done was to
appoint an advocate amicus curiae and then
proceed to dispose of the appeal on merits."

25. Similarly the Supreme Court set
its face against the practice of dismissing
1104 INDIAN LAW REPORTS ALLAHABAD SERIES
criminal appeals for default of appearance
and advocated appointment of amicus
curiae in Kabira Vs. State of U.P.8:

"2....We are, therefore, of the
view that there has not been a proper
disposal of the appeal preferred by the
appellant. The appeal could not be
dismissed by the learned Judge for default
of appearance. If the appellant was not
present, the learned Judge should have
appointed some advocate as amicus curiae
and then proceeded to dispose of the appeal
on merits."

26. By means of the the bail
application the applicant has prayed to be
enlarged on bail in Case Crime No. 50 of
2019 at Police Station- Bardah, District-
Azamgarh under Section 307 IPC. The
applicant is in jail since 20.03.2019.

27. T he bail application of the
applicant was rejected by the learned trial
court on 04.06.2019.

28. The following arguments made by
Shri Omar Zamin, learned counsel on
behalf of the applicant, which could not be
satisfactorily
refuted
by
Shri
Rishi
Chaddha, learned AGA from the record,
entitle the applicant for grant of bail:

(i). The FIR has been lodged to
rationalise a fake encounter staged by the
police
authorities
to
burnish
their
credentials and defend illegal use of force
upon applicant.

(ii). No one from the police has
suffered life threatening injury.

(iii). The recovered items were
planted on the applicant to implicate him in
this case.

(iv). There is no independent
witness to the recovery.

(v). Recovered articles cannot be
linked with the crime.

(vi). Prosecution evidence does
not connect the applicant with the offence.

(vii). It is contended that the
applicant has always cooperated with the
investigations and had joined the trial. The
applicant is innocent.

(viii). The trial is moving at a
snail's pace and and shows no sign of early
conclusion. The applicant cannot be faulted
for the delay in the trial.

(ix).
Inordinate
delay
in
concluding trial has lead to virtually an
indefinite
imprisonment
of
the
applicant.

(x). Status report sent by the
learned
trial
court
records
that
the
prosecution
proposes
to
examine
12
witnesses as per the chargesheet. However,
not a single witness has been examined till
date. The trial court is making delay. The
applicant is not responsible for the delay in
the trial. Inordinate delay in concluding
trial had lead to virtually an indefinite
imprisonment of the applicant. The right of
the applicant to speedy trial has been
violated.

(xi). The applicant is not a flight
risk. The applicant being a law abiding
citizen has always cooperated with the
investigation and undertakes to cooperate
with the court proceedings. There is no
possibility of his influencing witnesses,
tampering
with
the
evidence
or
reoffending.
3 All. Kamlesh Pathak Vs. State of U.P.
1105

(xii). The applicant has explained
his criminal history. It is also contended
that evidently the applicant is a soft target
and a convenient scapegoat for the police
authorities.
The
applicant
has
been
nominated in the said cases only to show
the proficiency of the police investigators.
The said criminal cases do not have any
bearing on the instant bail application.

29. In this wake without expressing
any opinion on the merits of the case I am
of the view that the applicant is entitled
to be enlarged on bail.

30. Let the applicant- Maneesh
Pathak be released on bail in the
aforesaid
case
crime
number,
on
furnishing a personal bond and two
sureties each in the like amount to the
satisfaction of the court below. The
following conditions be imposed in the
interest of justice:-

(i) The applicant will not tamper
with the evidence or influence any
witness during the trial.

(ii) The applicant will appear
before the trial court on the date fixed,
unless personal presence is exempted.

31. The learned trial court shall
ensure that the sureties demanded of the
applicant are commensurate with his
socioeconomic status. Heavy sureties
which the applicant can not fulfill in view
of his socioeconomic constraints will
render the right of bail nugatory.

32. High Court Legal Services
Authority shall kindly consider the
payment of the approved remuneration to
Shri Omar Zamin, Advocate (Adv. Roll
A/O0083/2012)
who
represented
the
applicant as amicus curiae before this
Court.

33. A copy of this order be
communicated to the learned trial court as
well as District Legal Services Authority,
Azamgarh, by Registrar Compliance by
FAX.
----------
(2023) 3 ILRA 1105
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.02.2023

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Misc. Bail Application No. 21738 of
2022

Kamlesh Pathak ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Umesh Singh, Mrs. Swati Agarwal
Srivastava, Sri V.P. Srivastava (Sn. Adv.)

Counsel for the Opposite Party:
G.A., Sri Anurag Shukla, Sri Dharmendra
Shukla, Sri Anil Tiwari (Sn. Adv.)

(A)
Criminal
Law
-
Uttar
Pradesh
Gangsters
and
Anti-Social
Activities
(Prevention) Act, 1986 - Section 3(1), 16,
17 and 22 - Predicate offence - 'actus
reus' - 'mens rea' - actus reus and the
mens rea are to be inferred from the
contents of the allegations made by the
prosecution whereby the applicant is
stated to be having criminal antecedents -
With respect to a gangster, an inference
can be drawn from the circumstances.
(Para - 22)

Applicant and his gang members - caused day
light murder of advocate and his sister - two
other persons were injured - took illegal
possession of land - public terrified of them -