Court No. - 83
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 17903 of 2021 Applicant :- Nirbhay Giri Opposite Party :- State Of Uttar Pradesh Counsel for Applicant :- Rajiv Lochan Shukla,Janardan Yadav Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Rajiv Lochan Shukla, learned counsel for the applicant virtually and learned AGA for the State.
2. Applicant-Nirbhay Giri, 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 28.01.2021, passed by Sessions Judge, Azamgarh, in Case Crime No. 297 of 2020 under Sections 147, 148, 149, 302/34, 404, 504, 506, 201 IPC, 7 Criminal Law Amendment Act, 3/25 Arms Act, Police Station Devgaon, District Azamgarh.
3. Learned counsel for the applicant submits that applicant is innocent and has falsely been implicated in the present case. As per FIR and statement of Informant recorded under Section 161 Cr.P.C. the role assigned to applicant is to provoke the other co-accused to kill the deceased. No recovery has been made either from the pointing out of applicant or from his possession. It is further submitted that co-accused, Abhishek Rai and Vijay Kumar Yadav have been granted bail by this Court vide orders dated 15.03.2021 and 10.05.2021 passed in Criminal Misc. Bail Applications No. 11340 of 2021 and 16899 of 2021 respectively and since the role of present applicant is not distinguishable with the role of aforesaid co-accused, the applicant is also entitled for bail. Lastly, it is submitted that applicant has no criminal history and is languishing in jail since 17.12.2020 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 has opposed the bail and submits that parity cannot be a sole ground for granting bail. However, he has not disputed the orders referred above.
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 the role assigned to applicant is only of exhortation; no recovery has been made from pointing out of applicant and from his possession; two co-accused have already been granted bail by this Court; applicant has no criminal history; he is in jail since 17.12.2020; as also considering the prevailing situation due to surge in COVID-19 cases, this Court is of the view that a case of grant of bail is made out.
7. Let the applicant-Nirbhay Giri 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. 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 :- 18.5.2021 AK Digitally signed by Justice Saurabh Shyam Shamshery Date: 2021.05.18 16:19:22 IST Reason: Document Owner Location: High Court of Judicature at Allahabad