Court No. - 83
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 17629 of 2021 Applicant :- Ishwar Tiwari Opposite Party :- State of U.P.
Counsel for Applicant :- Istiyaq Ali,Ali Hasan 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 Sri Ali Hasan learned counsel for the applicant through video conferencing, learned AGA 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.229 of 2017, under Sections 8/20 N.D.P.S. Act and Section 34 IPC, Police Station-Muderwa, District-Basti after rejection of his Bail Application vide order dated 16.3.2021 passed by learned Additional District Judge/F.T.C. Ist, Basti.
Learned counsel for the applicant submits that the applicant was granted bail in the above referred offence by this Court vide order dated 19.7.2017 in Crl. Misc. Bail Application No. 25852 of 2017. However, due to non appearance before the learned trial court, the bail of the applicant was cancelled and he was put behind the bar. Thereafter, he applied for fresh bail which was rejected by the learned trial court by order dated 16.3.2021 on the ground that applicant is indulging in delay the trial and despite repeated adjournments, no defence witness is produced on behalf of the applicant. Learned counsel further submits that the applicant was regularly appearing before the learned trial court and has never misused the liberty of bail. He did not appear on one date due to personal reasons. Applicant undertakes to appear each and every date before the learned trial court and co- operate for the expeditious disposal of the trial.
Learned A.G.A. has opposed the bail application. However, he has not disputed the above mentioned factual aspects of the cases.
'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, in this regard.
In the present case, it is not disputed that the applicant was earlier granted bail by this Court and was regularly appearing before the trial court. However, his bail was cancelled due to default of his appearance before the trial court only on one date. Considering that the applicant has given undertaking to co-operate with the trial and also, keeping in mind, 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.
Let applicant-Ishwar 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 shall make a declaration of such verification in writing.
Order Date :- 17.5.2021 Ankita Digitally signed by Justice Saurabh Shyam Shamshery Date: 2021.05.19 11:37:17 IST Reason: Document Owner Location: High Court of Judicature at Allahabad