Court No. - 83
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 47738 of 2020 Applicant :- Devendra Opposite Party :- State of U.P.
Counsel for Applicant :- P.K. Singh,Alok Shukla Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri P.K. Singh, learned counsel for the applicant appearing through video conferencing, learned A.G.A. for the State and perused the record.
2. The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No.276 of 2020, under Sections 323, 504, 302, 34 of I.P.C., Police Station-Sajeti, District-Kanpur Nagar after rejection of his Bail Application vide order dated 23.10.2020 passed by learned Sessions Judge, Ramabai Nagar (Kanpur Dehat).
3. Learned counsel for the applicant submits that initially N.C.R. was lodged on 30.09.2020 by the complainant-Shiv Ram alleging that on 30.09.2020 at about 11:00 a.m. when he was tying his buffalo outside his house, all the accused persons who are the neighbors started abusing and assaulted him and his wife by lathi and sticks, wherein both husband and wife were injured. Thereafter, on 03.10.2020 the complainant lodged an F.I.R. under Sections 323, 504 and 304 against the applicant and co-accused has mentioned same allegation as in the N.C.R. On 03.10.2020, wife of the informant succumbed to her injury at about 04:00 a.m. As per post mortem report, contusion was found all over occipital and parietal region. Cause of death was due to anti mortem head injury. The injured/deceased Shiv Ram was also medically examined who sustained three lacerated wound injuries. Learned counsel for the applicant further submits that there is no independent witness of alleged recovery of lathi-danda from the house of the applicant. There is no motive for applicant to commit such offence. It was a case of sudden provocation. Author of the fatal injury on the head of the deceased was not identified. The applicant has no other reported criminal antecedent and he is languishing in jail since 05.10.2020. There is no likelihood of early disposal of trial and the applicant undertakes that if enlarged on bail, he will never misuse his liberty and will co-operate in the trial.
4. Learned A.G.A. has vehemently opposed the bail application and submitted that name of the applicant along with co-accused was specifically mentioned in the N.C.R., F.I.R. as well as in the statements of the injured witness. The applicant along with co-accused has assaulted deceased and the injured in furtherance of their common intention.
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 the criminal antecedents of the accused. It is also well settled that the Court while considering an application for bail must not go into deep into 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 court 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 cases involving sexual offence against a woman should not mandate 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 submission, 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 tampering with the evidence, relevant factors mentioned above, particularly that death of the deceased is caused after two days. Author of the fatal injury is not identified. Prima facie, at this stage, it cannot be ascertained that the applicant and co-accused were aggressor and that applicant has no criminal history and he is in jail since 05.10.2020. A case of bail is made out and the applicant is entitled to be released on bail in this case.
7. Let the applicant Devendra, involved in aforesaid case crime number be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(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. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
11. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
12. 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.
13. The observations made hereinabove are only for the purpose of adjudicating the present bail application.
Order Date :- 19.4.2021 SK Goswami