Court No. - 30
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 47857 of 2021 Applicant :- Kamlesh Mishra Opposite Party :- State Of U.P Counsel for Applicant :- Anand Kumar Srivastava,Sudhir Kumar Agarwal Counsel for Opposite Party :- G.A.
Hon'ble Brij Raj Singh,J.
Heard learned counsel for the applicant and learned AGA for the State and perused the record.
Learned counsel for the applicant is not interested to file rejoinder affidavit.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant seeking enlargement on bail, in Case Crime No.34 of 2021, under Section 8/20 N.D.P.S. Act, Police Station Chaubeypur, District Kanpur Nagar.
Learned counsel for the applicant has submitted that the applicant has been falsely implicated in the instant case. He has further submitted that 1.590 Kg Charas was found from the possession of co-accused, Smt. Sunita Devi @ Babita. The applicant is also implicated in the same case and 1.572 Kg. Charas was found from his possession. The quantity of Charas found from possession of the applicant is less than the quantity which has been found from possession of the co-accused, Smt. Sunita Devi @ Babita and she has been granted bail. The applicant is otherwise stated to have no criminal history and is in jail since 17.02.2021. Lastly, it is contended by the learned counsel for applicant that the applicant shall not abscond and will fully cooperate in the proceedings. The applicant shall not tamper with the evidence nor influence the witnesses in any manner.
On the other hand, learned A.G.A. opposed the prayer for bail, but could not dispute the aforesaid facts.
Upon hearing learned counsel for the parties, perusal of record and considering the complicity of accused, severity of punishment as well as totality of facts and circumstances, at this stage, without commenting on the merits of the case, I find it a fit case for bail. The relevant paragraph of bail order of Smt.
Sunita Devi @ Babita is quoted below:-
"It is contended by the learned counsel for the applicant that 1.590 kilograms charas is alleged to have been recovered from the possession of the applicant, when in fact no such recovery has taken place. It is next contended that it is not known as to how the weighment of allegedly recovered substance was done. There is no independent witness of the alleged recovery. Learned counsel for the applicant further contended that mandatory provisions of N.D.P.S Act has not been complied with in the present case. It is next contended that the applicant does not have criminal history prior to lodging of the present case. It is next contended that there are no chances of the applicant of fleeing away from the judicial process or tampering with the prosecution evidence. It is further contended that the applicant has no criminal history and the applicant is in jail since 17.2.2021 and in case she is enlarged on bail, she will not misuse the liberty of bail.
Learned A.G.A. has vehemently opposed the prayer.
Courts have taken notice of the overcrowding of jails during the current pandemic situation (Ref.: Suo Motu Writ Petition (c) No. 1/2020, Contagion of COVID 19 Virus in prisons before the Supreme Court of India). These circumstances shall also be factored in while considering bail applications on behalf of accused persons.
Having heard the submissions of learned counsel of both sides, nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment, and larger mandate of the Article 21 of the Constitution of India, the dictum of Apex Court in the case of Dataram Singh v. State of U.P. and another, reported in (2018) 2 SCC 22 and without expressing any opinion on the merit of the case, I find it to be a case of bail."
Let the applicant, namely, Kamlesh Mishra, who is involved in aforementioned case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.
(i) 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.
(ii) The applicant shall remain present before the Trial Court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A IPC.
(iii) 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 IPC.
(iv) 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.
(v) The Trial Court may make all possible efforts/endeavour and try to conclude the trial as expeditiously as possible.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.
Order Date :- 23.12.2021 Atul Digitally signed by BRIJ RAJ SINGH Date: 2021.12.29 09:42:26 IST Reason: Document Owner Location: High Court of Judicature at Allahabad