Vikas Yadav vs State of U.P. and Another

M.L. Mehta, J.

Crl. M.B. No. 535/2011

This is an application of Appellant/convict, Vikas Yadav, for suspension of his sentence and release on interim bail for a period of three months to enable him to attend the marriage ceremonies including mehandi, marriage and two receptions of his brother, Kunal Yadav. The Appellant is a convict of the offences of abducting and murdering Nitish Katara and causing disappearance of evidence by burning his dead body under Sections 364/302/201/34 of IPC. He has been sentenced to undergo life imprisonment for the offence u/s 302/34 of IPC with a fine of Rs. 1 lakh and in default of payment of fine to undergo simple imprisonment of one year. He has been sentenced to undergo imprisonment for ten year for the offence u/s 364/34 of IPC with a fine of Rs. 50,000/- and in default of payment of fine to undergo simple imprisonment of six months and he has also been sentenced to undergo imprisonment for five years for the offence u/s 201/34 of IPC with a fine of Rs. 10,000/- and in default of payment of fine to undergo simple imprisonment of three months.

It is submitted by the learned Counsel for the Appellant/convict that latter has undergone continuous incarceration of more than nine years and his conduct has been quite satisfactory during all this period. It is submitted that his grandfather is aged about 91 years and is suffering from serious ailments and has desired to spend some valuable time with his grand-son, Appellant/Vikas Yadav. The other ground as stated above is to enable him to attend the marriage ceremonies of his brother, Kunal Yadav.

With regard to the marriage ceremonies of his brother, Kunal Yadav, it was submitted that these have started on 13th April, 2011 and will continue till 6th May, 2011. It may be noted that on 14th April, 2011 was the ring ceremony at Hotel Hyatt Regency, New Delhi. Vide order dated 7th April, 2011, a custodial parole of limited period was granted to him to attend the said ceremony. All other ceremonies, except the marriage scheduled for 29th April, 2011, are outside Delhi. Ceremony of Mehandi and Cocktail is at Ghaziabad on 27th April, 2011. The two reception ceremonies are to be performed at Chandigarh and Badayun (Uttar Pradesh) on 1st May, 2011 and 6th May, 2011 respectively. It is only the marriage, which is to be performed in Delhi at The Umrao (Hotel & Resort), Near Rajokri Flyover, Delhi-Jaipur Highway, N.H. 8, Delhi-110038.

In support of his submissions, learned Counsel, Mr. Verma, appearing for the Appellant has placed reliance on the judgments of Shakuntala Devi v. State, 1996 Cri. LJ 2954; Rajesh v. State, 2006 (1) JCC 284 and Daulat v. State 2006 (1) JCC 258. Relying on the aforesaid judgments, learned Counsel submitted that to enable the Appellant to maintain ties with his family and society, it is essential that he may be granted interim bail particularly in view of the marriage of his brother.

The application is contested by the State as also by the complainant. Learned Counsel, Mr. Sanjeev Bhandari, appearing for the State submitted that keeping in view the nature of the offences and the conduct of the Appellant and also his criminal tendency, it was not at all safe to release him on interim bail. He also submitted that the Appellant has not come with clean hands inasmuch as the filing of Writ Petition No. 1293/2010 and withdrawing of the same on 30th August, 2010 has not been deliberately disclosed in the instant application. He also submitted that a Criminal Appeal being 958/2008 for enhancement of the sentence from life imprisonment to death was also filed by the State and was pending consideration before this Court. Learned Counsel also submitted that on inquiry, it is found that since both the parents of the Appellant are ML As, the functions are likely to be attended by large number of persons of different sections of the society. It is expected that the gathering of the invitees will be more than 3000 and that would provide opportunity to the Appellant to flee or commit some other offence.

The complainant also stated about the aggressive nature and criminal bent of mind of the Appellant. It is also stated that Ajay Katara was one of the main witnesses of last-scene evidence and the Appellant has already filed an application u/s 391 Code of Criminal Procedure for recalling him. In this regard, it is stated that there is every possibility of the Appellant influencing Ajay Katara in case he was released on bail on short term. The complainant has also expressed apprehension regarding her own safety and also that of Ajay Katara. The complainant also submitted that the Appellant while in custody had slapped a press photographer in Patiala House Courts.

We have heard the learned Counsel for the parties and perused the relevant record. As noted above, the request for attending the ring ceremony was allowed by this Court vide its order dated 7th April, 2011. It is also noted above that all the other ceremonies except marriage are being performed outside Delhi. There is no denial that the functions are to be attended by large number of persons.

It may be noted that earlier an application being Criminal M.B. No. 1381/2008 was filed for suspension of sentence and also for release on bail, which came to be dismissed by this Court vide order dated 7th August, 2009. It is noted that while dismissing this application, this Court had also noted that the Appellant was involved in a murder case, which was subsequently withdrawn by the Government of U.P. in 1993. The Court had also noted and rightly so that the Appellant was also involved in the case of murder of Jessica Lal and while on bail in the said case, he committed the offence in the present case. It is also noted that again similar application was filed being Criminal M.B. No. 1218/2009 for suspension of sentence and release on interim bail of the Appellant for a period of one month for the marriage ceremonies of his sister, Ms. Bharti. The said application came to be disposed of by this Court by order dated 23rd October, 2009. It is seen that the pleas taken in the said application were similar as taken in the present application, namely, continuous incarceration of long period of seven years and seven months at that time, the desire of the grand-father to spend valuable time with the Appellant in his old age. The said application was for the marriage ceremonies of his sister, whereas the present one is for that of his brother, Kunal Yadav. The judgments as cited before us were also cited before the Division Bench of this Court at that time. There is no change of circumstances except that the period of incarceration has increased to nine years and the marriage being that of his brother. All the judgments cited were considered by the Division Bench of this Court. There is no dispute with regard to the proposition of law as laid down in the aforesaid judgments of this Court with regard to the courts to be sensitive to the needs of the convicts to re-connect with his family and friends to enable him to re-establish his family ties. But, however, the fact is that there was also no dispute that each case was to be decided on its own facts and order of suspension of sentence or that of release of convicts on interim bail or on parole cannot be passed mechanically in all cases of continuous incarceration of the convicts. There is no dispute that the State has also filed a Criminal Appeal for enhancement of sentence of the Appellant from life imprisonment to death sentence and the same is pending before this Court. The application u/s 391 Code of Criminal Procedure has been filed by the Appellant for recalling Ajay Katara, who has already been examined as a witness against him in the present case. The complainant has brought to our notice various complaints made by Ajay Katara to the Ghaziabad Police against the father and his other associates regarding threats and other offences. The Police has also reported that on inquiry made on the complaints, armed security has been provided to Ajay Katara. The Police has also reported of pendency of large number of cases against his father and other associates. The conduct of the convict is one of the most relevant circumstances for consideration for suspension of sentence or release on bail. The facts of commission of offence of murder of Nitish Katara while the Appellant was on bail in the case of murder of Jessica Lal and his having slapped a photographer in the court premises and pendency of application u/s 391 Code of Criminal Procedure cannot be brushed aside lightly.

Keeping in view all these facts and also that the ceremonies are being performed out of Delhi and are to be attended by large number of persons of different sections of society, the apprehension of the State and that of the complainant seem to be well-founded. In view of this, we are not inclined to suspend the sentence of the Appellant or release him on interim bail at this stage.

However, keeping in view the facts that one of the main ceremonies, i.e., wedding is to take place in Delhi, we allow custodial parole and permit the Appellant to attend the said ceremony of his brother, Kunal Yadav, on 29th April, 2011 at The Umrao (Hotel & Resort), Near Rajokri Flyover, Delhi-Jaipur Highway, N.H. 8, Delhi-110038 under the judicial custody, subject to some terms and conditions.

The Barat is stated to depart at about 5.00 PM from the residence of the Appellant at New Raj Nagar, Ghaziabad, and arrive at the venue of marriage at The Umrao (Hotel & Resort). As per the invitation card, the dinner time at the venue is 8 PM. Consequently, we allow the Appellant to be taken to the venue of marriage, i.e., The Umrao (Hotel & Resort), Near Rajokri Flyover, Delhi-Jaipur Highway, N.H. 8, Delhi-110038 at about 6 PM and to allow him to attend the marriage ceremony and remain there till the completion of the ceremonies, which may last till late hours of 29th April, 2011 or early hours of 30th April, 2011. The officials, under whose custody the Appellant would be taken for attending the marriage ceremony, would remain in plain clothes. While permitting the Appellant to move around and meet all those, whom he may desire during this period, the custodial officials shall, however, ensure safe and secured surrounding. It is expected from the Appellant and his family members to cooperate the custodial officials in this regard. After the marriage ceremonies, the Appellant will be taken back to the place where he is lodged.

A copy of this order be give dasti under the signatures of the Court Master of this Court.