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2023 DIGILAW 1883 (ALL)

Aftab Khan v. State of U. P.

2023-08-04

KRISHAN PAHAL

body2023
JUDGMENT Krishan Pahal, J. Order on Criminal Misc. Modification Application No. 2 of 2023 List has been revised. 2. Heard Sri Bal Krishna Yadav, learned Amicus Curiae for the applicant as well as Sri Deepak Kumar Singh, learned A.G.A. for the State. 3. The applicant has filed his modification application. The applicant is in jail since 5.1.2021 in the said case and has no criminal antecedents to his credit. The applicant was enlarged on bail by this Court in the present case vide order dated 25.1.2022. The applicant is an indigent person as is evident from Annexure-2 as reported by District Jail as the applicant, owing to his weak financial condition, is unable to furnish sureties, as such, he is languishing in jail for no fault of his. 4. Learned Amicus Curiae has placed reliance on the judgement of this Court in Sukhari @ Sobrati passed in Criminal Misc. Bail Application No. - 19185 of 2022, whereby the delinquent person was directed to furnish a personal bond of Rs. 10,000/- and two sureties of the like amount. 5. Learned Amicus Curiae has also placed reliance on the judgement of the Apex Court passed in In Re Policy Strategy For Grant of Bail v. Mr. Gaurav Agrawal, Adv. is Amicus Curiae, which reads as under :- "With a view to ameliorate the problems a number of directions are sought. We have examined the directions which we reproduce hereinafter with certain modifications: 1) The Court which grants bail to an under-trial prisoner/convict would be required to send a soft copy of the bail order by e-mail to the prisoner through the Jail Superintendent on the same day or the next day. The Jail Superintendent would be required to enter the date of grant of bail in the e-prisons software [or any other software which is being used by the Prison Department]. 2) If the accused is not released within a period of 7 days from the date of grant of bail, it would be the duty of the Superintendent of Jail to inform the Secretary, DLSA who may depute para legal volunteer or jail visiting advocate to interact with the prisoner and assist the prisoner in all ways possible for his release. 3) NIC would make attempts to create necessary fields in the e-prison software so that the date of grant of bail and date of release are entered by the Prison Department and in case the prisoner is not released within 7 days, then an automatic email can be sent to the Secretary, DLSA. 4) The Secretary, DLSA with a view to find out the economic condition of the accused, may take help of the Probation Officers or the Para Legal Volunteers to prepare a report on the socioeconomic conditions of the inmate which may be placed before the concerned Court with a request to relax the condition (s) of bail/surety. 5) In cases where the under-trial or convict requests that he can furnish bail bond or sureties once released, then in an appropriate case, the Court may consider granting temporary bail for a specified period to the accused so that he can furnish bail bond or sureties. 6) If the bail bonds are not furnished within one month from the date of grant bail, the concerned Court may suo moto take up the case and consider whether the conditions of bail require modification/ relaxation. 7) One of the reasons which delays the release of the accused/ convict is the insistence upon local surety. It is suggested that in such cases, the courts may not impose the condition of local surety." 6. After hearing the arguments tendered at Bar and taking into consideration the case laws furnished by learned Amicus Curiae, this Court is of the view that in light of the arguments tendered, the case law adduced and also the judgement of the Apex Court passed in Moti Ram and Ors. v. State of Madhya Pradesh (1978) 4 SCC 47 , the modification application is allowed. The relevant paragraph 15 of the said judgement reads hereinunder:- "15. It is interesting that American criminological thinking and research had legislative response and the Bail Reforms Act, 1966 came into being. The then President, Lyndon B. Johnson made certain observations at the signing ceremony : Today, we join to recognize a major development in our system of criminal justice : the reform of the bail system. This system has endured-archaic, unjust and virtually unexamined-since the Judiciary Act of 1789. The principal purpose of bail is to insure that an accused person will return for trial if he is released after arrest. This system has endured-archaic, unjust and virtually unexamined-since the Judiciary Act of 1789. The principal purpose of bail is to insure that an accused person will return for trial if he is released after arrest. How is that purpose met under the present system ? The defendant with means can afford to pay bail. He can afford to buy his freedom. But the poorer defendant cannot pay the price He languishes in jail weeks, months and perhaps even years before trial. He does not stay in jail because he is guilty. He does not stay in jail because any sentence has been passed. He does not stay in jail because he is any more likely to flee before trial. He stays in jail for one reason only-because he is poor...." 7. Let the applicant- Aftab Khan involved in aforementioned case crime number be released on bail with the condition that the trial court shall take every endeavour in light of paragraph 5 and 6 of the judgement passed in In Re Policy Strategy For Grant of Bail (supra) and he shall be enlarged on bail after furnishing the personal bond of Rs. 10,000/- and two sureties each in the like amount to the satisfaction of the court concerned subject to the conditions imposed on the applicant vide order dated 25.1.2022 passed in the present bail order.