Shiv Kumar vs State Of U.P.

1. Heard Shri Sandeep Kumar Dubey, Advocate has appeared on behalf of the applicant as counsel appointed by the High Court Legal Services Committee, Learned A.G.A. for the State and perused the record.

2. The instant bail application has been filed with a prayer to release the applicant on bail in Case Crime no.4 of 2024, under Sections 307, 326 IPC, Police Station Majhola, District Moradabad.

3. Learned counsel for the applicant states that the applicant has been falsely implicated in the present case. The applicant is in jail since 02.01.2024. The witnesses of fact in the present case have been examined and now there is no possibility of the applicant tampering with the evidence or intimidating the witnesses. Relying upon the decision of this Court in the Case of Asha vs. State of U.P. in Criminal Misc. Bail Application No.13193 of 2025, 2025:AHC:184205 dated 14.10.2025, he has contended that the applicant needs to prepare a valid defence and the opportunity to prepare his defence cannot be availed in full while the applicant is in jail. The applicant has no criminal antecedents.

4. Learned AGA has opposed the prayer for bail and has contended that the applicant is the solitary accused in the present case. The applicant has been assigned the role of repeatedly inflicting injury on the head of the injured. The supplementary report shows 'Head injury with comminuted fracture of both orbits with deformed both eye globes with comminuted fracture of all bony wall of bilateral maxillary sinus with hemorrhagic contusion with pneumocephalus with DBE.' The injured is the real brother of the applicant. He has further submitted that the injured in his statement before the Trial Court has specifically nominated the applicant as the one who had caused injuries on his head and face by use of 'Sabbal'. Although the applicant has no criminal antecedents, however, the act of the applicant of assaulting his real brother constitutes heinous crime, in which the applicant may not be considered for grant of bail.

5. I have considered the submissions made by Learned counsels for the parties.

6. Admittedly, six prosecution witnesses have been examined at trial. As per the Learned counsel for the applicant, the prosecution witnesses of fact have all been examined and even the I.O. has been examined. The stage is set for recording the statement under Section 313 Cr.P.C. and defence evidence. This Court in Asha vs. State of U.P. and connected bail applicant has opined as follows:-

"8. The criteria for grant of bail so evolved over the years include the gravity of offence and its impact on society. The nature of implicatory evidence against an accused is an important factor. The requirements of the investigation agency too need to be factored in. For example need of police custody of an accused for collecting evidence or making recoveries or preventing disappearance of evidence may need examination in the facts and circumstances of a case.

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VIII. Conclusions: Parameters for grant of bail to prepare and conduct defence:

82. After the conclusion of prosecution evidence or near conclusion of the same, the stage is set for proceedings under Section 313 Cr.P.C. ? Section 351 of the BNSS and later for introduction of defence evidence under Section 233 Cr.P.C. ? Section 256 of the BNSS. This is an apposite stage to consider grant of bail for collecting defence evidence and preparation of defence.

83. Preparation of defence evidence and tendering defence evidence to establish the innocence of an accused is not a formality in criminal trials but an essential part of substantive justice and fair procedure.

84. The criteria for grant of bail for defence after prosecution evidence has closed or nears conclusion will now be examined. While granting bail after the conclusion of prosecution evidence or when prosecution evidence nears closure, some of the factors which were prominent at the stage of pre-trial bail will recede in the background, while other considerations will become more prominent. For example the possibility of influencing prosecution witnesses will not be relevant after the prosecution evidence has concluded.

85. The relevant considerations while examining grant of bail for defence will include the heinousness of the offence/depravity of the crime and impact on the society. Criminal history of the accused will also have a bearing on the matter. Conduct of the accused including cooperation in the investigations and the trial will be relevant. The fact that an accused has not tampered with evidence, nor influenced witnesses too will merit examination.

86. The other factor which may be considered is the nature of implicatory evidence and whether the police investigation suffered from a pro prosecution bias. Pro prosecution bias in a police investigation results in failure to collect exculpatory evidences, and refusal to pursue the lines of investigation which would establish the innocence of the accused. After prosecution evidence is closed, nature of defence evidence proposed by an accused may be considered briefly, but a detailed appraisal is to be certainly avoided.

87. The need of an accused to gather resources to get legal advice and collect evidences will also be a factor for consideration. The issue whether the accused has effective pairokars to professionally collect defence evidence, obtain quality legal advice, and prosecute his defence in the trial in an efficacious manner may also need a look in. At that stage the Court is also liable to examine whether further detention of the accused will become punitive.

88. In the facts and circumstances of a case, the Court may additionally impose stringent conditions to prevent the abuse of the liberty of bail and to ensure the presence of the accused.

89. Preparation of defence does not automatically guarantee enlargement of an accused on bail. Nor can bail be granted for defence on a mechanical basis. Effective conduct of defence can be a ground for bail at the appropriate stage when examined in the composite light of other relevant parameters.

90. Grant of bail for defence will thus be a result of judicial discretion guided by cumulative consideration of the aforesaid relevant factors. It is however clarified that the above parameters are neither exhaustive nor are liable to be applied in a rigid formulaic manner. The preceding discussion does not attempt a comprehensive catalogue of grounds of bail for defence. The aforesaid criteria may be adopted or adapted or evolved in the facts and circumstances of a case. In the ultimate analysis the exercise of judicial discretion for grant of bail to conduct defence requires application of mind to all relevant facts and circumstances of each case to advance the cause of justice and prevent the possibility of injustice."

7. In the present case, the injured in his statement recorded before the Investigating Officer has stated that he was told by his family members that the applicant had assaulted him. In statement before the Trial Court, he has assigned the role of assault to the applicant. Prima facie, there is inconsistency in the statement recorded during investigation and that recorded at trial. This Court would not venture further into the evidence led before the court as that is primarily the job of the trial court and any opinion by this Court may influence the trial. However, taking into account the determination of by this Court in the case of Asha (supra) and the fact that the prosecution evidence has concluded, the applicant can be considered for grant of bail and for preparing an effective defence.

8. Taking into account the entire facts and circumstances of the case, the lack of criminal antecedents of the applicant, I find it appropriate to enlarge the applicant on bail.

9. The bail application is allowed.

10. The applicant Shiv Kumar has been represented by a counsel from the High Court Legal Services Committee and there does not appear to be any pairokar of the applicant. The dispute in the present case involves the immediate family members and as such, it would be appropriate to direct the release of the accused-applicant Shiv Kumar on bail on executing a personal bond without any sureties.

11. Let the accused-applicant, Shiv Kumar, involved in above mentioned case crime number be released on bail, on his executing a personal bond to the satisfaction of the court concerned, subject to the following conditions:

(i) The applicant will not tamper with the evidence.

(ii) The applicant will not indulge in any criminal activity.

(iii) The applicant will not pressurize/intimidate the prosecution witnesses and co-operate in the trial.

(iv) The applicant will appear regularly on each and every date fixed by the trial court, unless his personal appearance is exempted by the court concerned.

12. In the event of breach of any of the aforesaid conditions, the court concerned will be at liberty to proceed to cancel his bail.

13. It is made clear that the applicant shall be released on the basis of computer generated copy of this order, downloaded from the official website of High Court Allahabad and verified by the concerned counsel with the undertaking that the certified copy will be filed within 15 days.

14. It is further directed that the trial court shall send the release order to the concerned jail through Bail Order Management System (BOMS) to ensure early release of the applicant.

15. The observations made hereinabove are exclusively for deciding the instant bail application and are not to be considered to be an opinion on the merits of the case.

(Rajiv Lochan Shukla,J.)

May 7, 2026

A. Pandey