Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21455 of 2020 Applicant :- Mahesh Opposite Party :- State of U.P.
Counsel for Applicant :- Sheetala Prasad Pandey,Manish Kumar Singh,Pavan Kishore Counsel for Opposite Party :- G.A.,Ram Sakal Yadav
Hon'ble Saurabh Shyam Shamshery,J.
Heard Sri Pavan Kishore and Sri S.P. Pandey, learned counsel for the applicant, Sri Ram Sakal Yadav, learned counsel for the complainant, learned A.G.A. 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. 119 of 2019 under Sections 147, 148, 149, 302, 504, 506 I.P.C., police station Dumariyagnj, District Siddharth Nagar after rejection of his Bail Application, vide order dated 06.12.20219 passed by Sessions Judge, Siddharth Nagar.
Learned counsel for the applicant submits that initially the F.I.R. was lodged against three persons. Subsequently, on the basis of the statement of first informant, the name of five other accused persons were added. He further submits that initially the F.I.R. was lodged under Section 307 I.P.C. along with other penal offences and after the death of the injured, Section 302 I.P.C. was also added. He submits that out of eight accused persons seven accused have been granted bail by different orders passed by Co-ordinate Benches of this Court. He further submits that even out of three eye witnesses, two eye witnesses have stated that two accused persons, namely, the applicant and accused Pappu Yadav have assaulted the deceased. However, one of the eye witness has stated that only the applicant had assaulted the deceased. The deceased as per the post mortem report died due to single injury which is opined to be a stab wound. The applicant was allegedly assigned knife. He submits that measurement and the nature of injury indicates that it could be caused by Hansiya also which is assigned to co-accused Pappu Yadav. It is lastly submitted that applicant is languishing in jail since 22.06.2019, there is no likelihood of early disposal of trial and the applicant undertakes that if he is enlarged on bail, he will never misuse his liberty, will not commit any offence during bail and will co-operate in the trial.
Learned counsel for the complainant and learned A.G.A. have vehemently opposed the bail and submitted that there is specific allegation against the applicant for causing single fatal injury by knife. However, it is not disputed that out of three eye witnesses, two eye witnesses have stated that two accused persons have assaulted the deceased, who died due to solitary fatal injury.
(A) 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.
(B) 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.
(C) 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.
(D) 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.
7. Considering the rival submission, 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 initially three persons were named in the F.I.R. However, on the statement of first informant, the name of five more persons were added and also considering that out of eight accused persons bail has already been granted to seven co-accused and further taking note that out of three eye witnesses two have stated that two persons have assaulted the deceased out of whom one accused, namely, Pappu Yadav has already been granted bail and also taking note of the submission of counsel for the applicant that the nature and measurement of the injury caused to the deceased could be caused by a weapon other than knife also, namely, Hasiya and also considering that there is no previous criminal history of the applicant and he is languishing in jail since 22.06.2019, this Court is of the view that a case of grant of bail is made out.
8. Let applicant - Mahesh 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.
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 applicant 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. It is expected from the trial court that trial of this case will be concluded expeditiously and while granting any adjournment, trial court will take note of the provisions of Section 309 Cr.P.C.
15. 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 :- 27.7.2021 Shiraz