Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25167 of 2021 Applicant :- Shri Narayan Opposite Party :- State Of U P Counsel for Applicant :- Shahroze Khan
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Shri Shahroze Khan, learned counsel for the applicant, learned A.G.A. and perused the record.
2. The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No. 45 of 2021, under Section 302 IPC, Police Station - Kotwali Bansi, District - Siddharth Nagar.
3. As per prosecution case in brief, informant Smt. Kanti Devi lodged the First Information Report on 03.03.2021 under Section 302 I.P.C. against the applicant alleging inter alia that a civil dispute between her and the applicant was pending. Her husband (Nanad Kumar) had left his house on 02.03.2021 at 7:00 P.M. but he did not return back to home. His dead body was found near the river on 3.3.2021. The First Information Report further alleged that she suspects that her husband was done to death by the accused persons.
4. Learned counsel for the applicant submits that after recovery of dead body of the deceased, the inquest proceeding and post mortem were conducted, but no injury was found on the body of deceased and cause of death is found to be asphyxia, as result of, drowning. It is pointed out that Investigating Officer after investigation converted the case under Section 306 I.P.C. and, thereafter, charge sheet has been submitted only against the applicant and another co-accused - Rampat, whereas no charge sheet has been submitted against co-accused - Ram Kumar, who is brother of applicant. There is no eye witness of the alleged incident and informant is also not eye witness. It is further submitted that there is no admissible evidence of abetment against the applicant, therefore, under the facts and circumstances of the case section 306 I.P.C. is also not attracted in the present case. It is next submitted that similarly situated co-accused Rampat has already been granted bail by this Court, vide order dated 22.7.2021, passed in Criminal Misc. Bail Application No.25249 of 2021. It is lastly submitted that applicant is languishing in jail since 4.3.2021, 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.
5. Learned A.G.A. has vehemently opposed the bail. However, he has not disputed that there is no eye witness of the alleged incident. The case has been converted under Section 306 I.P.C. and there is no direct evidence against the applicant.
6. (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.
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 neither any direct evidence against the applicant nor there was eye-witness to the alleged incident. The case is completely based on circumstantial evidence; that in the inquest report dead body of the deceased was found in the river; taking note of the submission that case under Section 306 IPC might not be attracted; that similarly situated co-accused has been granted bail and also considering that there is no previous criminal history of the applicant and he is languishing in jail since 4.3.2021, this Court is of the view that a case of grant of bail is made out.
8. Let applicant - Shri Narayan 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 Rishabh Digitally signed by SAURABH SHYAM SHAMSHERY Date: 2021.08.02 11:08:00 IST Reason: Document Owner Location: High Court of Judicature at Allahabad