Heard Sri Dinesh Mishra, learned counsel for the applicant, learned AGA for the State and perused the material placed on record.
Applicant Krishnkant Mishra, 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 02.12.2020, passed by Incharge Additional Sessions Judge First, Kaushambi, in Case Crime No.75 of 2020 under Section 302 IPC, Police Station Puramufti, District Kaushambi.
Learned counsel appearing for applicant submitted that initially the first informant (son of the deceased) lodged an FIR against the unknown person as the dead body of his father was found on tubewell. According to post mortem report, deceased died due to antimortem injury (three lacerated wound on the vital part and three abrasion). The first informant in his statement recorded u/s 161 Cr.P.C. has narrated the version mentioned in the FIR, however, in the majeed bayan recorded on 27.9.2020, the name of the applicant was disclosed on the based of suspicion on the alleged motive that deceased was asking repeatedly to repay the loan of Rs.1300/-, taken by the applicant. The alleged recovery of some brick is planted as there is no public witness. The entire prosecution case is based on suspicion and confessional statement of the applicant. He lastly submitted that the alleged motive is very week evidence. Applicant is in jail since 28.04.2020. In case, he is released on bail, he will not misuse the liberty of bail and will co-operate in the trial by all means. There is no chance of applicant fleeing away from judicial process or tampering with the witnesses, as such, he may be released on bail.
Learned A.G.A. has opposed the prayer for bail and submitted that during investigation a cogent evidence has come in regard to the motive and active participation of the applicant in committing the offence and the deceased has received three lacerated wound on the occipital region. However, he has not disputed that the entire prosecution case is based on circumstantial evidence and there is no criminal history of the applicant.
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 entire prosecution case is base on circumstantial evidence, the name of the applicant was disclosed in majeed bayan on the basis of suspicion, there is no public witness to the alleged recovery, applicant has no criminal history, this Court is of the view that a case of grant of bail is made out.
Let the applicant Krishnkant Mishra 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 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 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 and the trial court may proceed against him 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 :- 12.2.2021 A.Dewal