Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21995 of 2021 Applicant :- Mukarrab Opposite Party :- State of U.P.
Counsel for Applicant :- Krishna Kumar Shukla,Gaurav Kakkar,Thakur Prasad Dubey Counsel for Opposite Party :- G.A.,Ajai Kumar,Manoj Kumar Srivastava
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Gaurav Kakkar, learned counsel for applicant, learned A.G.A. for State and learned counsel for Informant.
2. Applicant-Mukarrab, 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 24.02.2021, passed by District and Sessions Judge, Moradabad, in Case Crime No.481 of 2020, under Section 302 I.P.C., Police Station Kundarki, District Moradabad.
3. Learned counsel for applicant submitted that there are two versions of alleged occurrence and in both versions place of occurrence, manner of assault and nature of injuries are totally different. Both versions are alleged to be of eye witness account. Subsequent version is allegedly corroborated the manner and number of injuries caused to deceased and eye witness account for the said version, in case considered to be true, it might be a case of sudden fight. It is also submitted that alleged motive is on the co-accused whereas present applicant has no concerned with motive. In the FIR the person who has been alleged to use rifle has been exonerated during investigation and charge sheet has been filed only against two accused. It is also submitted that the GD entry with regard to dead body received at hospital also belied the statement of eye witness account. Lastly, it is submitted that applicant has no criminal history and is languishing in jail since 02.11.2020 and in case, he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
4. Learned A.G.A. appearing for State and learned counsel appearing for Informant have opposed the prayer for bail and submit that in both the versions presence of accused applicant is not disputed. There is recovery of a danda, the weapon allegedly used in crime, from applicant and there is evidence of motive also against applicant.
5(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. 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.
(C) 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.
6. 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 apparently there are two versions of alleged occurrence wherein there is change of place of occurrence, manner of assault and nature of injuries; one of the named accused, who has been alleged role of firing, has already been exonerated during investigation and charge sheet has been filed only against applicant and one other co-accused; also taking note of the submission of learned counsel for applicant that dead body of deceased was brought by police in hospital and not by any eye witness, as alleged; and that applicant has no criminal history, is languishing in jail since 02.11.2020, this Court is of the view that a case of grant of bail is made out.
7. Let the applicant- Mukarrab 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.
8. 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.
9. The bail application is allowed.
10. Observations made above are only for the purpose of adjudicating the present bail application.
11. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
12. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
13. 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 :- 30.7.2021 AK Digitally signed by SAURABH SHYAM SHAMSHERY Date: 2021.07.30 17:12:13 IST Reason: Document Owner Location: High Court of Judicature at Allahabad