Anand Kumar vs State of U.P.

Vijay Kumar Verma, J.—In this bail application prayer for bail has been made on behalf of applicant-accused Anand Kumar in Case Crime No. 106 of 2008, u/s 364A, I.P.C., P.S. Civil Lines, Allahabad.

A missing report (Gumsudgai) was lodged on 29.3.2008 at P.S. Civil Lines, Allahabad, by constable 183 A. P. Surendra Singh of Police Lines, Allahabad regarding disappearance of his nephew Gaurav, s/o Rama Kant, aged about 7 years Gaurav was living with the complainant in Railway Colony. That missing report was lodged at P.S. Civil Lines Allahabad, at G.D. No. 16 at 5.15 a.m. on 29.3.2008. Further case of the prosecution is that on the information given by the informer two co-accused, namely, Vikki Kumar Hela and Kamal Sharma were arrested by the police on 6.4.2008 at about 7.45 p.m near Sai Temple, Allahabad under tamarind tree situated on the road going to Judges colony. It is alleged, that those accused were apprehended at the time when mother of abducted Gaurav had come to pay ransom money to them. It is further alleged that after arrest of those ''accused,'' on their information the accused Anand Kumar (applicant herein) was also arrested with abducted child Gaurav from the mod of Sabji Mandi ahead of Judges colony, Allahabad.

I have heard Shri Rajesh Kumar Gupta advocate appearing for the applicant, A.G.A. Shri Ashutosh Tripathi for the State and perused the entire record carefully.

The main ground for the bail in this case is parity, about which it is submitted by the learned Counsel for the applicant that co-accused Kamal Sharma has been granted bail by another Bench of this Court vide order dated 4.2.2009, passed in Bail Application No. 26702 of 2008 and hence, on the ground of parity, the applicant also should be granted bail.

It was further submitted by the learned Counsel that there is no criminal history of the applicant and he has been falsely implicated in this case.

Next submission made by the learned Counsel was that the applicant did not demand any ransom and no ransom money was passed to any accused and hence, on this ground the offence u/s 364A, I.P.C. would not be made out and at the most offence u/s 342, I.P.C. only is made out against the applicant, which is bailable.

It was further submitted by the learned Counsel that according to the case of prosecution, the co-accused Kamal Sharma and Vikki Kumar Hela are said to have been arrested by the police at the time when they had reached near Sai Temple to receive ransom money from the mother of abducted Gaurav, whereas the applicant was not arrested at that time and after arrest of the co-accused Vikki and Kamal Sharma, false story of recovery of abducted Gaurav from the possession of applicant has been concocted.

Lastly it was submitted by the learned Counsel that the applicant is in jail since 6.4.2008, and hence on the ground of long detention in jail, he should be admitted to bail now, because due to delay in trial the fundamental right of speedy trial envisaged under Article 21 of the Constitution of India is being violated.

The A.G.A. on the other hand, vehemently opposed the bail application and contended that on the ground of parity of the bail order of co-accused Kamal Sharma, the applicant-accused Anand Kumar does not deserve bail in this heinous crime, as the abducted child Gaurav was recovered from his possession, whereas no recovery of child was made from the co-accused Kamal Sharma, to whom bail has been granted by another Bench of this Court.

Having given my thoughtful consideration to the rival submissions made by learned Counsel for the parties and after carefully going through the entire case diary and other papers on record, in my opinion, it is not a fit case to grant bail to the applicant in this heinous crime of abduction for ransom. Although another Bench of this Court has granted bail to the co-accused Kamal Sharma vide order dated 4.2.2009 passed in Bail Application No. 2602 of 2008, but in my considered opinion, on the basis of the parity of that bail order, the applicant cannot not be admitted to bail, because abducted child Gaurav was recovered from the possession of the applicant by the police, whereas there was no allegation of recovery of child from the co-accused Kamal Sharma. There is sufficient evidence in the case diary to show that the co-accused Kamla Sharma and Vikki Kumar Hela had called the mother of abducted Gaurav near Sai Temple, Allahabad to pay ransom money and they both were apprehended by the police at the time when they were having talks to the mother of Gaurav, but at that time recovery of abducted child Gaurav was not made from their possession and the child was subsequently recovered from the possession of applicant, when he was apprehended near Sabji Mandi mod ahead of Judges colony, Allahabad, where he was found present holding the abducted child Gaurav. Therefore, in my considered opinion, the bail order dated 4.2.2009 passed on the bail application of co-accused Kamal Sharma is not of any help to the applicant Anand Kumar. Otherwise also, parity is not the sole ground for bail, as held by Division Bench of this Court in the case of Chander alias Chandra v. State of U.P. 1998 UP Cr R 283: 1998 (1) ACR 356. Moreover, the role of the applicant is distinguishable from the role of co-accused Kamal Sharma in the sense that abducted child was recovered from the possession of the applicant.

In my considered opinion, on the basis of the period of detention in jail also, the applicant cannot be admitted to bail in present case of heinous crime of kidnapping for ransom. In this context reference may be made to the case of Pramod Kumar Saxena v. Union of India and Ors. (XLIII) 2008 ACC 115: 2008 (3) ACR 3216, in which the Hon''ble Apex Court has held that mere long period of incarceration in jail would not be per-se illegal. If the applicant has committed offence, he has to remain behind bars. Such detention in jail even as an under trial prisoner would, not be violative of Article 21 of the Constitution.

For the reasons mentioned hereinabove, the bail application of the applicant Anand Kumar is hereby rejected.

The trial court concerned is directed to make, sincere efforts to conclude the trial of the applicant within six months from the date on which copy of this order is received by it.

The Office is directed to send a copy of this order within a week to the trial court concerned for necessary action.