# Vipin v. State of U.P

- **Citation:** (2023) 3 ILRA 1119
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-28
- **Case number:** Criminal Misc. Bail Application No. 25088 of 2021
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vipin-v-state-of-u-p-49783
- **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)

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:

## Text

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
1120 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Anil Gaur @ Sonu @ Sonu Tomar Vs St. of
U.P. , 2022 SCC Online AII 623

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

5. 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 Shams Uz Zaman, 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
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."
3 All. Vipin Vs. State of U.P.
1121

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
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
1122 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

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
3 All. Vipin Vs. State of U.P.
1123
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 nonreceipt 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
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.61 of
2021
at
Police
Station-Khudaganj,
District-Shahjahanpur
under
Sections
8/20 of NDPS Act.
1124 INDIAN LAW REPORTS ALLAHABAD SERIES

27. The applicant was in jail since
11.03.2021 and was granted interim bail by
this Court on 01.02.2023.

28. The following arguments made by
Shri Shams Uz Zaman, learned counsel on
behalf of the applicant, which could not be
satisfactorily refuted by Shri Sunil Kumar
Srivastava, learned AGA from the record,
entitle the applicant for grant of interim bail:

(i). 1 Kg. and 100 gram Charas was
planted on the applicant to implicate him in
this case to burnish the credentials of the
police authorities.

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

(iii). The quantity of the prohibited
substance is exaggerated as inaccurate
instruments have been used for weighment.
The recovered substance is in fact below the
commercial quantity notified under the
NDPS Act.

(iv). No reliable forensic science
laboratory report drawn up in accordance
with latest scientific protocol by experts
which affirms that the seized substance is a
prohibited drug has been produced.

(v). The search and seizure has
been made in violation of the mandatory
provisions of the NDPS Act.

(vi). The applicant has explained
his criminal history. Learned AGA contends
that the applicant has a criminal history of
some more cases. Rejoining this issue,
learned counsel for the applicant contends
that the applicant is in jail. He is financially
destitute and does not have an effective
pairokar or counsel. Hence details of the
cases could not be obtained and stated in the
bail application. However, relying on the
records available with the learned AGA,
learned counsel for the applicant submits that
the applicant belongs to the economically
poor strata of the society and is a convenient
scapegoat for the police authorities. The
applicant was falsely framed in the said cases.
The said cases do not have any bearing on the
instant case.

(vii). The learned trial court in its
status
report
has
disclosed
that
the
prosecution proposes to examine 7 witnesses
to bring home the charges. Till date not a
single witness has been examined. The
applicant is in jail for the past one and a half
months. The trial is moving at a snail's pace
and is not likely to conclude anytime in the
near future.

(viii). The applicant is a law
abiding citizen who cooperated with the
police investigations and had joined the trial.
The applicant is not responsible for the delay
in the trial.

(ix). Inordinate delay in concluding
trial had has led to virtually an indefinite
imprisonment of the applicant without there
being any credible evidence to implicate him
in the offence and violates the rights of the
applicant to speedy trial.

(x). 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.

29. In the light of the preceding
discussion
and
without
making
any
observations on the merits of the case, the
bail application is allowed.
3 All. Raghav Das Chela Mahant Mathura Das Mahant & Anr. Vs. Kali Ram Das Chela Mahant
 Ganga Ram Das & Ors.
1125

30. Let the applicant- Vipin 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 Shams Uz Zaman, Advocate (Adv.
Roll A/S0815/2012) 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,
Shahjahanpur, by Registrar Compliance by
FAX.
----------

(2023) 3 ILRA 1125
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.02.2023

BEFORE

THE HON'BLE AJAY BHANOT, J.
FAFO No. 1145 of 2016

Raghav Das Chela Mahant Mathura Das
Mahant & Anr. ...Appellants
Versus
Kali Ram Das Chela Mahant Ganga Ram
Das & Ors. ...Respondents

Counsel for the Appellants:
Sri Ram Kishore Pandey, Sri R.K. Pandey,
Sri Sachin Ohja

Counsel for the Respondents:
Sri Gulrez Khan, Sri G. Khan, Sri Javed
Husain Khan, Sri Pradeep Chandra Tripathi,
Sri W.H. Khan (Sr. Advocate)

Civil Law - Civil Procedure Code, 1908-
Order 32, 41, Rule 15, 27, - Hindu Public
Religious
Institution
Prevention
from
Dissipation
of
Properties
Temporary
Powers Act, - Section 6, - Indian Evidence
Act, 1872 - Section - 114(e), 90, -
Limitation Act, 1963 - Section - 5 - Delay
Condonation
application
-
Admissibility
of
document - presumption of correctness -
photocopy of the order was presented before
the
court
below
along
with
the
delay
Condonation application - said document was
registered on the file as 35C/169C by learned
appellant court - Delay Condonation application
was allowed by the learned appellate court on
the foot of aforesaid document - Order passed
by the learned appellate court allowing delay
Condonation application has attained finality -
court finds that, once a challenge to a particular
document has been waived, the party cannot
resile from its conscious stand and assail the
same at belatedly in appeal - Held, after the
decision
of
application
under
Section
5
Limitation Act - Paper was considered by
learned predecessor at the time of decision of
application under section 5 Limitation Act for
Condonation of delay in filing the present appeal
- Court considered view that the Court below
committed illegality by completely ignoring of
provisions of law contained in order 32 Rule 15
of the Civil Procedure Code in commencing the
proceedings
and
passing
the
impugned
judgment and decree without appointing the
Guardian of the original defendant who was a