Court No. - 83
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20316 of 2021 Applicant :- Brij Lal Prajapti Opposite Party :- State Of U.P Counsel for Applicant :- Gaurav Kakkar Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Gaurav Kakkar, learned counsel for the applicant virtually and learned AGA for the State.
2. Applicant-Brij Lal Prajapti, has approached this Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. after rejection of his Bail Application vide order dated 08.03.2021, passed by Sessions Judge, Allahabad, in Case Crime No. 397 of 2020 under Sections 323, 504 and 304 IPC, P.S. Holagarh, district Allahabad.
3. Learned counsel for the applicant submits that all the accused are related to the deceased. Initially on 4.12.2000 the injured (since deceased) lodged a NCR under Section 323 and 504 IPC alleging that all the four accused including the applicant assaulted him in which he received injuries. Later on, injured succumbed to his injuries on 11.12.2000 and the NCR was converted into an FIR under Sections 323, 504 and 304 IPC against all the co-accused including the applicant. Counsel for the applicant argues that no specific role has been attributed to any of the applicants. There is only single assualt on the skull which has resulted into the death of deceased after 7 days. It would be a case of sudden fight without premeditation. There is no motive for the applicant to commit the crime. The prosecution after a period of 27 days introduced eye-witness namely Shailesh, who has attributed the role of causing sole fatal injury to the deceased on the applicant, who was mainly introduced for the purpose of corroborating the post-mortem report. Lastly, it is submitted that applicant has no criminal history and is languishing in jail since 15.12.2020 and in case, he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
4. Per contra, learned A.G.A. appearing for State has opposed the bail and submits that the name of the applicant along with other three other accused specifically mentioned in the NCR which was lodged by the injured (since deceased), who succumbed to his injury after 7 days caused on his skull. During investigation the eye-witness has specifically mentioned the role of the applicant, being author of the sole fatal injury. However, he has not able to refute the submission of the issue of likelihood of sudden fight without any premeditation.
5. Law on bail is well settled that 'Bail is rule and Jail is exception'. Bail should not be granted or rejected in a mechanical manner as it concerns liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as existence of a prima facie case against the accused, gravity of the allegations, severity of punishment, position and status of the accused, likelihood of the accused fleeing from justice and repeating the offence, reasonable apprehension of tampering with the witnesses and obstructing the Courts as well as criminal antecedents of the accused. It is also well settled that the Court while considering an application for bail must not go into deep merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered. It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. The Court should record the reasons which have weighed with the count for the exercise of its discretionary power for an order granting or rejecting bail. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory. The Court while granting bail in the case involving sexual offence against a woman should not mandate such bail conditions, which is/are against the mandate of "fair justice" to victim such as to make any form of compromise or marriage with the accused etc. and shall take into consideration the directions passed by Supreme Court in Aparna Bhat and others vs. State of Madhya Pradesh and another, 2021 SCC Online SC 230, in this regard.
6. Considering the rival submissions, material available on record, the period of detention already undergone, the unlikelihood of early conclusion of trial, absence of any convincing material to indicate the possibility of tempering with the evidence, relevant factors mentioned above, particularly that even the injured (since deceased) has not specified any specific role to any of the accused including the applicant when he lodged the NCR on 4.12.2000. The injured has died after a period of 7 days. The statement of the alleged witness was recorded after 27 days and at this stage prima facie it cannot be said that there was intention on the part of the applicant and other co-accused to cause death or of causing such bodily injury as is likely to cause death; he is in jail since 17.12.2020; as also considering the prevailing situation due to surge in COVID-19 cases, this Court is of the view that a case of grant of bail is made out.
7. Let the applicant-Brij Lal Prajapati be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Court concerned with the following conditions which are being imposed in the interest of justice:-
(i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
(ii) The applicant will abide the orders of Court, will attend the Court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in Court. In case of default of this condition, it shall be open for the Trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C., may be issued and if applicant fails to appear before the Court on the date fixed in such proclamation, then, the Trial Court shall initiate proceedings against him, in accordance with law, under section 174-A I.P.C.
(V) The applicant shall remain present, in person, before the Trial Court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C. If in the opinion of the Trial Court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law and the Trial Court may proceed against him under Section 229- A IPC.
(vi) The Trial Court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
8. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
9. The bail application is allowed.
10. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.
11. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
12. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
13. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 19.5.2021 pks Digitally signed by Justice Saurabh Shyam Shamshery Date: 2021.05.19 17:19:39 IST Reason: Document Owner Location: High Court of Judicature at Allahabad