Court No. - 76
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 51078 of 2021 Applicant :- Bechan Opposite Party :- State of U.P.
Counsel for Applicant :- Rajeev Kumar Singh Counsel for Opposite Party :- G.A.,Kailash Choudhary
Hon'ble Sanjay Kumar Pachori,J.
Heard Sri Rajeev Kumar Singh, learned counsel for the applicant, learned A.G.A. for the State as well as Sri Kailash Choudhary, learned counsel for the opposite party no.2 and perused the record of the case.
The present bail application has been filed on behalf of applicant Bechan, under Section 439 of The Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No.536 of 2021 under Sections 147, 323, 504, 506, 427, 308 I.P.C. registered at Police Station-Gulariha, District-Gorakhpur, during pendency of the trial.
Brief facts of the case are that the first information report dated 26.09.2021 has been lodged against the applicant and other 10 named persons stating that on 26.09.2021 at about 04:00 a.m. co-accused Brijesh entered into house of the first informant and molestated minor daughter of the brother of first informant and after seeing family members he fled away and after some time, he came along with the other co-accused persons and committed marpeet by lathi danda and bricks and abused with filthy language. In the incident, father, namely, Vishwanath, mother, brother and wife of the first informant sustained injuries. Father of the first informant sustained injury in his head and they broke the Katrain.
It has been submitted by learned counsel for the applicant that the applicant has been falsely implicated in the present case due to enmity. It is further submitted that an first information report of a cross case has been lodged by the applicant's side as Case Crime No.537 of 2021 against the informant and three other persons under Section 323, 504 I.P.C. and Section 3(1)(da) and 3(1)(dha) of SC/ST Act. It has further been submitted that except injured Vishwanath, other injured persons received simple injuries. Injury of the Vishwanath which has been caused on his skull, in the opinion of the doctors, is serious. A general role of marpeet has been assigned to all the accused persons including the applicant. No other specific role has been assigned to the applicant to cause injury of Vishwanath. Statement of the injured Vishwanath has been recorded, he has also stated general allegation against the applicant and other co- accused persons. Applicant has no criminal history to his credit. Charge sheet in the matter has been submitted on 04.11.2021. Applicant is no more required for the purpose of investigation. Applicant is languishing in jail 28.09.2021 and undertakes that he will not misuse the liberty, if granted. It has also been pointed out that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.
Per contra learned A.G.A. has opposed the prayer for bail. In case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.
It is settled position of law that bail is the rule and committal to jail is an exception in the case of State of Rajasthan Vs. Balchand @ Baliay (1977) 4 SCC 308, the Apex Court observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution and opined para 2 "The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the court. We do. not intend to be exhaustive but only illustrative." and considering the facts of the case and keeping in mind, the ratio of the Apex Court's judgment in the case of Gudikanti Narasimhulu And Ors vs Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, larger mandate of Article 21 of the constitution of India, the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused-applicant, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public/ State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.
Let applicant, Bechan be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions-
(i) The applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.
(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.
(iii) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 of Cr.P.C.
(iv) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in the trial court.
(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
Order Date :- 24.12.2021 SK Goswami