Court No. - 83
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 17722 of 2021 Applicant :- Durga Tiwari Opposite Party :- State Of U.P Counsel for Applicant :- Sanjay Kumar Yadav,Shri Ram Yadav Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
This Vacation Bench is hearing the cases through virtual mode due to surge in COVID-19 cases.
Heard Sri Sanjay Kumar Yadav, learned counsel for the applicant through video conferencing, learned A.G.A. and perused the record.
The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No. 30 of 2021, under Sections 3(1) of U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, Police Station-Tarwa, District- Azamgarh after rejection of his Bail Application vide order dated 2.4.2021 passed by the Court of Additional Sessions Judge (Gangsters Act), Azamgarh.
Learned counsel for the applicant submits that there is only one case in the gang chart against the applicant wherein he is on bail and a copy of the order is annexed alongwith this application. He further submits that no case is made out under the provisions of U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986. Applicant has no other criminal history and he is languishing in jail since 7.3.2021. Applicant undertakes not to commit any offence in case bail is granted and there is no likelihood of early disposal of trial and he will never misuse his liberty and will co-operate in the trial.
Learned A.G.A. has opposed the bail application and submits that the applicant is a member of an active gang and has also pointed out that the conditions of Section 19(4) of the Act are not met out. It is not disputed by the learned A.G.A. that the applicant has already on bail in the sole case mentioned in the gang chart.
'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, reported in 2021 SCC Online SC 230, decided on 18.3.2021 in this regard.
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 tampering with the evidence, relevant factors mentioned above, particularly that the allegations under the Gangsters Act are levelled against the applicant only on the basis of single case mentioned in the Gang chart wherein he is on bail, prima facie, in the facts and circumstances of the case conditions prescribed in Section 19(4) of the Act are fulfilled and also considering the present prevailing situation due to surge in COVID-19 cases and that applicant is languishing in jail since 7.3.2021 having no criminal history, this Court is of the view that a case of grant of bail is made out.
Let applicant-Durga Tiwari 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 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 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 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 Trial Court absence of applicant is deliberate or without sufficient cause, then it shall be open for Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law and Trial Court may proceed against him under Section 229-A IPC.
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.
The bail application is allowed.
It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
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 Order Date :- 17.5.2021 Ankita Digitally signed by Justice Saurabh Shyam Shamshery Date: 2021.05.19 11:37:27 IST Reason: Document Owner Location: High Court of Judicature at Allahabad