Court No. - 83
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 19859 of 2021 Applicant :- Naseem Opposite Party :- State of U.P. Counsel for Applicant :- Vinod Singh Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Vinod Singh, learned counsel for the applicant and learned A.G.A. for State through Video Conferencing and perused the material placed on record.
2. Applicant-Smt. Naseem, has approached this Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. after rejection of her Bail Application vide order dated 19.01.2021, passed by Sessions Judge, Bulandshahar, in Case Crime No.465 of 2020 under Section 468 IPC, Police Station Khurja Dehat, District Bulandshahar.
3. Learned counsel for the applicant submits that applicant, who is wife of named accused, was not named in the FIR. Allegation against husband of applicant is of kidnapping the victim who was a Singer and normally performs alongwith husband of applicant. During investigation it was revealed that applicant alongwith two other co-accused, namely, Rahul and Yamin helped the named accused providing shelter to him and victim. It is also pointed out that similarly situated co-accused, Rahul has been granted bail by this Court vide order dated 24.03.2021 passed in Criminal Misc. Bail Application No. 15180 of 2021. Applicant is a lady who has been falsely implicated in the present case. Lastly, it is submitted that applicant has no criminal history and is languishing in jail since 03.01.2021 and in case, she is released on bail, she will not misuse the liberty of bail and will cooperate in trial.
4. Learned A.G.A has opposed the prayer for bail on the ground that applicant being wife of main accused has actively participated in the offence and helped him alongwith other co-accused by providing place to confine victim. However, it is not disputed that similarly situated co-accused has been granted bail by this Court.
5. 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. 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. 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. 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, 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 applicant is a lady, who has no criminal history, not named in the FIR and her named was disclosed during investigation alongwith two other co-accused, who allegedly helped the main accused in the offence; that one of the co-accused, Rahul has been granted bail by this Court; that applicant is languishing in jail since 03.01.2021, this Court is of the view that a case of grant of bail is made out.
7. Let the applicant- Smt. Naseem 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 her 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 her, 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 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 her in accordance with law and the Trial Court may proceed against her 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. It is made clear that the observations made hereinabove 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 :- 17.5.2021 AK Digitally signed by Justice Saurabh Shyam Shamshery Date: 2021.05.18 09:43:37 IST Reason: Document Owner Location: High Court of Judicature at Allahabad