TaxTMI 
TaxTMI 
2022 (4) TMI 1519
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the farmers decided to organise a protest against Mr. Ajay Mishra in his ancestral village on 03.10.2021. Various farmers' organisations issued appeals to their members and supporters to participate in the demonstration, and pamphlets were also distributed. 4. On 03.10.2021, an annual Dangal (wrestling) competition was being organised by Ashish Mishra @ Monu, i.e., Respondent-Accused. The program was to be attended by Mr. Ajay Mishra, as well as Mr. Keshav Prasad Maurya, Deputy Chief Minister of the State of Uttar Pradesh, for whom a helipad was constructed in the playground of Maharaja Agrasen Inter College, Tikonia. A crowd of farmers started gathering near the helipad in the morning of 03.10.2021. The route of the Chief Guest was thus changed to take him by road. But the changed road route was also passing in front of the Maharaja Agrasen Inter College, where the protesting farmers had been gathering in large numbers. This led the authorities to take recourse to yet another alternative way to reach the Dangal venue. 5. In the meantime, some supporters of Respondent No. 1, who were travelling by a car to the Dangal venue, were statedly attacked by certain farmers. The mirr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....urt, on 17.11.2021, reconstituted the SIT and new members were inducted to carry out the investigation. Justice (Retd.) Rakesh Kumar Jain, a former Judge of the Punjab and Haryana High Court, was appointed to monitor the investigation. The reconstituted SIT filed a chargesheet on 03.01.2022, wherein, the Respondent-Accused was found to be the main perpetrator of the events that took place on 03.10.2021. 10. The Accused-Respondent moved an application for bail before the High Court of Judicature at Allahabad, Lucknow Bench. Vide the impugned order dated 10.02.2022 (corrected on 14.02.2022), the High Court allowed the application and granted regular bail to the Respondent-Accused. The relief was primarily granted on four counts. Firstly, the Court held that the primary allegation against the Respondent-Accused was of firing his weapon and causing gunshot injuries, but neither the inquest reports nor the injury reports revealed any firearm injury, therefore, the High Court opined that the present case was one of "accident by hitting with the vehicle". Secondly, the allegation that he provoked the driver of the car could not be sustained since the driver along with two others, who wer....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aside the impugned order and cancel the bail, the Respondent Accused would be left without any remedy and it would be nearly impossible for him to be released on bail till the conclusion of trial. 14. Shri Mahesh Jethmalani, learned Senior Counsel appearing for Respondent No. 2, i.e., State of Uttar Pradesh, at the outset argued that a bail hearing should not be converted into a mini trail. He urged that the Court ought to consider three basic parameters at the time of deciding bail-(i) the possibility of tampering with evidence; (ii) whether the Accused would be a flight risk; & (iii) the nature of the offense. With respect to the first consideration, it was highlighted that the State Government, under the ambit of the Witness Protection Scheme, 2018, had provided adequate security, including armed personnel, to all the 'victims' and witnesses. It was explained that the State was regularly following up with the witnesses and that the possibility of the Accused tampering with any witness, was narrow. Learned Senior Counsel further submitted that given the local roots of the Respondent-Accused, he could not be considered as a flight risk. Shri Jethmalani, however, stated th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ition of a victim in the framework of Criminal Law and Procedure, Council of Europe Committee of Ministers to Member States, 1985; Strengthening victim's right in the EU communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Reasons, European Union, 2011; Proposal for a Directive of the European Parliament and of the Council establishing "Minimum Standards on the Rights, Support and Protection of Victims of Crime, European Union, 2011. 18. Amongst other nations, the United States of America had also made two enactments on the subject i.e. (i) The Victims of Crime Act, 1984 under which legal assistance is granted to the crime-victims; and (ii) The Victims' Rights and Restitution Act of 1990. This was followed by meaningful amendments, repeal and insertion of new provisions in both the Statutes through an Act passed by the House of Representatives as well as the Senate. In Australia, the Legislature has enacted South Australia Victims of Crime Act, 2001. While in Canada there is the Canadian Victims Bill of Rights. Most of these legislations have defined the 'victim' of a crime liberally a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f Code of Criminal Procedure, observed that there was need to give adequate representation to victims in criminal proceedings. The Court therein affirmed the victim's right to file an appeal against an order of acquittal. In Mallikarjun Kodagali, though the Court was primarily concerned with a different legal issue, it will be fruitful in the present context to take note of some of the observations made therein: 3. What follows in a trial is often secondary victimisation through repeated appearances in court in a hostile or a semi-hostile environment in the courtroom. Till sometime back, secondary victimisation was in the form of aggressive and intimidating cross-examination, but a more humane interpretation of the provisions of the Evidence Act, 1872 has made the trial a little less uncomfortable for the victim of an offence, particularly the victim of a sexual crime. In this regard, the judiciary has been proactive in ensuring that the rights of victims are addressed, but a lot more needs to be done. Today, the rights of an Accused far outweigh the rights of the victim of an offence in many respects. There needs to be some balancing of the concerns and equalising their righ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ims to be heard, especially in cases involving heinous crimes, is increasingly being acknowledged; Second, where the victims themselves have come forward to participate in a criminal proceeding, they must be accorded with an opportunity of a fair and effective hearing. If the right to file an appeal against acquittal, is not accompanied with the right to be heard at the time of deciding a bail application, the same may result in grave miscarriage of justice. Victims certainly cannot be expected to be sitting on the fence and watching the proceedings from afar, especially when they may have legitimate grievances. It is the solemn duty of a court to deliver justice before the memory of an injustice eclipses. 26. Adverting to the case at hand, we are constrained to express our disappointment with the manner in which the High Court has failed to acknowledge the right of the victims. It is worth mentioning that, the complainant in FIR No. 219 of 2021, as well as the present Appellants, are close relatives of the farmers who have lost their lives in the incident dated 03.10.2021. The specific stance taken by learned Senior Counsel for the Appellants that the Counsel for the 'victims....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ticulous examination of the evidence collected by the police and comment on the same. Such assessment of evidence and premature comments are likely to deprive the Accused of a fair trial....The High Court or the Sessions Court can cancel the bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the Accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the Accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well-recognised principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the Accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing the Accused involved in heinous crimes because they ultimately re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d) 32. The aforestated principles have been affirmed and restated in a number of subsequent decisions, including in the recent judgments of Neeru Yadav v. State of U.P. and Anr. (2014) 16 SCC 508, p. 11, Anil Kumar Yadav v. State (NCT of Delhi) and Anr. (2018) 12 SCC 129, p. 17 & 18, and Mahipal v. Rajesh Kumar and Anr. (2020) 2 SCC 118, p. 13. 33. Before dealing with the case at hand, we may, at the cost of repetition, emphasise that a Court while deciding an application for bail, should refrain from evaluating or undertaking a detailed assessment of evidence, as the same is not a relevant consideration at the threshold stage. While a Court may examine prima facie issues, including any reasonable grounds whether the Accused committed an offence or the severity of the offence itself, an extensive consideration of merits which has the potential to prejudice either the case of the prosecution or the defence, is undesirable. It is thus deemed appropriate to outrightly clarify that neither have we considered the merits of the case nor are we inclined to comment on the evidence collected by the SIT in the present case. 34. We may now briefly note the holding of the High Court as is m....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... we have no difficulty in answering question (B) also in the affirmative. It is held that the order under challenge does not conform to the relevant considerations. C. Whether interference is warranted by this Court: 38. As a natural and consequential corollary to the findings under questions (A) & (B) above, the impugned order of the High Court dated 10.2.2022 (as corrected on 14.2.2022) cannot be sustained and has to be set aside. Ordered accordingly. 39. As a sequel thereto, bail bonds of the Respondent/Accused are cancelled and he is directed to surrender within a week. 40. Having held so, we cannot be oblivious to what has been urged on behalf of the Respondent-Accused that cancellation of bail by this Court is likely to be construed as an indefinite foreclosure of his right to seek bail. It is not necessary to dwell upon the wealth of case law which, regardless of the stringent provisions in a penal law or the gravity of the offence, has time and again recognised the legitimacy of seeking liberty from incarceration. To put it differently, no Accused can be subjected to unending detention pending trial, especially when the law presumes him to be innocent until proven guilt....