Court No. - 83
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 17180 of 2021
Applicant :- Imran And Another
Opposite Party :- State Of U.P
Counsel for Applicant :- A.Z.Khan,Ravitendra Pratap Singh Chandel
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
This vacation Bench is hearing cases through virtual mode due to surge in Covid-19 cases.
Heard Shri A.Z. Khan, learned counsel for the applicants, learned A.G.A. through video conferencing and perused the record.
The applicants have approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No. 138 of 2021, under Sections 2/3 of U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, Police Station - Kotwali Dehat, District - Saharanpur after rejection of his Bail Application, vide order dated 3.4.2021 passed by learned Special Judge (Gangster Act)/Additional Sessions Judge, Saharanpur.
Learned counsel for the applicants submits that in the gang chart, two cases are mentioned against applicant no.1 - Imran and one case against applicant no.2 - Faizan wherein applicants are on bail. It is further submitted that no case is made out under the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 and prima facie, he is not guilty of the offence referred above as well as he undertakes not to commit any offence in case bail is granted to them. The present case is lodged only in order to keep the applicants in the jail. Applicants are languishing in jail since 28.3.2021 (applicant no.1) and 3.4.2021 (applicant no.2).
Learned A.G.A. has opposed the bail application and pointed out the conditions mentioned in the Section 19(4) by the Court while granting bail in the case of Gangster Act. However, he has not disputed that applicants are on bail in the cases 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 there is only two and one case respectively against applicant no.1 and 2 mentioned in the gang chart, wherein they are on bail; further on the basis of material available, prima facie, conditions required in the Section 19 (4) B of the Act are met out and considering the present and prevailing situation due to Covid-19, this Court is of the view that a case of grant of bail is made out.
Let applicant - Imran and Faizan 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 applicants will not tamper with prosecution evidence and will not harm or harass the complainant in any manner whatsoever.
ii) The applicants 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 applicants shall file an undertaking to the effect that they 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 applicants will not misuse the liberty of bail in any manner whatsoever. In case, the applicants misuses the liberty of bail during trial and in order to secure them presence proclamation under section 82 Cr.P.C., may be issued and if applicants fail to appear before the Court on the date fixed in such proclamation, then, the Trial Court shall initiate proceedings against them, in accordance with law, under Section 174-A I.P.C.
v) The applicants 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 applicants 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 them in accordance with law and Trial Court may proceed against them under Section 229-A IPC.
9. 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 applicants to prison.
10. The bail application is allowed.
11. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.
12. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
13. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
14. 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 :- 17.5.2021 Rishabh
Digitally signed by Justice Saurabh Shyam Shamshery Date: 2021.05.18 17:05:27 IST Reason: Document Owner Location: High Court of Judicature at Allahabad