Heard Sri Rajesh Kumar Srivastava, learned counsel for the applicant, learned AGA for the State and perused the material placed on record.
Applicant Haseen Ansari Alias Neha, 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 18.09.2018, passed by III Additional Sessions Judge/ Special Judge (DDA), Agra, in Case Crime No. 638 of 2018, under Sections 302, 201, 120-B, 380, 411, 364A, 34 I.P.C., P.S.- Sikandara, District - Agra.
Learned counsel for the applicant has submitted that applicant is innocent and has been falsely implicated in the present case. Further submission of the learned counsel is that the F.I.R. was lodged by informant Jitendra against unknown persons after three days from the date of kidnapping. Subsequently, when the CCTV footage was seen, it was found that the deceased was taken by co-accused persons but there is noting about the accused applicant in CCTV footage, thereafter the accused persons were arrested, they made confessional statement and from their possession silver ornaments were recovered. In respect of silver ornament, one witness Zamiluddin was examined by the I.O. who stated that in the morning he saw the accused applicant with the co-accused persons carrying two bags and on being inquired, he said that it was silver ornament which they are taking for meena (coloring). Submission of the learned counsel is that there is no evidence against the accused applicant, even if, it is assumed that such recovery of ornament was made as a recovery which was in respect of subsequently committed theft by the accused persons but it cannot be connected with the murder of the deceased. It has also been submitted that against co-accused Subham evidence has come that he talked on mobile phone and demanded Rs. 5 lakhs in lieu of deceased claiming that he is in his possession. Submission of the learned counsel is that there is no such version against the accused applicant nor there is any evidence in this regard. It is further submitted that co-accused persons namely Sonu @ shyam Baghel & Dharmpal @ Dharm Singh have been granted bail by the co-ordinate Bench of this Court vide order dated 3.2.2021 & 30.04.2019, passed in Criminal Misc. Bail Application Nos.45437 of 2020 & 18130 of 2019, respectively. It is further submitted that there is no previous criminal history of the accused applicant and applicant is prepared to furnish sureties and bonds, therefore, there is no possibility of his either fleeing away from the judicial process or tampering with the evidence. Applicant is languishing in jail since 25.07.2018 and undertakes that she will not misuse the liberty of bail, if granted and cooperate in trial.
Learned A.G.A. has vehemently opposed the prayer of bail. He has however not disputed the aforesaid facts and has submitted that the police has filed charge-sheet after concluding the investigation.
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 the liberty of a person .At the time of considering an application for bail, the Court must take into account certain factors such as the existence of a prima facie case against the accused, the gravity of the allegations, position and status of the accused, the likelihood of the accused fleeing from justice and repeating the offence, the possibility 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 while considering application for bail. 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. 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.
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 the applicant is allegedly engaged in the confessional statement of co-accused Shubham whose role is distinguishable, the co-accused Sonu who was also allegedly accompanied of the applicant is on bail, the entire case of prosecution is rests upon circumstantial evidence, applicant has no criminal history, no recovery is effected from the applicant, this Court is of the view that a case of grant of bail is made out.
Let the applicant Haseen Ansari Alias Neha 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 she 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 her 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 her, 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 her in accordance with law and the trial court may proceed against her 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.
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.
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 shall make a declaration of such verification in writing.
Observations made above are only for the purpose of adjudicating the present bail application.
Order Date :- 9.2.2021 A.Dewal