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  • Writer's pictureDevesh Saxena

Bail Secured for an Undertrial Charged Allegedly for Murder, Conspiracy, and Rioting.

Courts in India have consistently worked on the principle, "Grant of bail is a rule and refusal is an exception."[1] However, in our present-day judicial system, perhaps it is often seen that Courts are usually reluctant to grant bail in those cases where alleged offences are of grave nature and the accused person is often left on his/her fate to remain in custody till the trial is over. Recently, even the present Hon'ble Chief Justice of India, Dr. D. Y. Chandrachud has stated, "The reason why the higher judiciary is being flooded with bail applications is because of the reluctance of the grassroot Courts to grant bail"[2].

The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” is the operative test. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not, or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.[3]

Guided by the above principles, we successfully represented an undertrial accused (in jail since February 2020) allegedly charged with offences under Sections 147, 148, 149, 302, 120-B, and 34 of IPC, and secured a Conditional Bail order from Allahabad High Court.

It was submitted on behalf of the Accused/Applicant that in the FIR, the role of causing gunshot injury has been assigned to the Applicant. Subsequently, in the statement of the real mama of the deceased, it was stated that the Applicant along with another Co-Accused, caused gunshot injury to the deceased. However, out of the two gunshots alleged to have been fired by two different persons, only one gunshot injury has been found on the body of the deceased in his postmortem report. Therefore, it is not clear who is the author of the aforesaid injury, out of two persons named by the aforesaid witness, including the Applicant and another Co-Accused. It was further submitted that the Co-Accused has already been enlarged on bail by the court below, whereas, the Applicant is in jail since 13.02.2020 and has no criminal history to his credit.

The Hon'ble Court considered the above submission made on behalf of the Applicant, and further observed the principle laid down by the Hon'ble Supreme Court in Union of India vs. K.A. Najeeb[4] regarding the long incarceration of undertrials prisoners in jail due to delay in the conclusion of the trial. Finally, the Hon'ble Court considered the larger mandate of Article 21 of the Constitution of India, as elucidated by the Hon'ble Apex Court in the case of Dataram Singh Vs. State of U.P. and Another[5] and Satendra Kumar Antil vs. C.B.I.[6], and was pleased to observe that the Applicant has made out a case for bail, and thus allowed the bail application after laying down certain conditions. Lastly, the Hon'ble Court also directed the trial court to conclude the trial of the Applicant as expeditiously as possible preferably within a period of one year from the date of production of the certified copy of the said order.

Bail Application was argued on behalf of the Applicant by Shri Brijesh Sahai, Senior Advocate who was assisted by Shri Bhavya Sahai and Shri Devesh Saxena (Partner, S&D Legal Associates)


Read Order:

Yashdev v. State of U.P. [BAIL(A)_45831_2020]
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[1] Shri Gurbaksh Singh Sibbia and Ors. v. State of Punjab, AIR 1980 SC 1632; Nikesh Tarachand Shah v. Union of India (UOI) and Ors., AIR 2017 SC 5500.

[3] Sanjay Chandra vs. CBI, (2012) 1 SCC 40.

[4] AIR 2021 SC 712.

[5] 2018 (3) SCC 22.

[6] 2021 (10) SCC 773.



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