Court No. - 83
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13585 of 2021
Applicant :- Raju @ Pawan
Opposite Party :- State of U.P.
Counsel for Applicant :- Rajiv Sisodia,Dhirendra Kumar Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
1. The Court is presently working on virtual mode only due to surge in Covid-19 cases.
2. Heard learned counsel for applicant and learned A.G.A. through video conferencing.
3. This bail application under Section 439 of Code of Criminal Procedure is filed by the applicant seeking enlargement on bail during trial in connection with Case Crime No. 53 of 2021, under Sections 60/63 of the Excise Act and Section 272/273 I.P.C., Police Station - Kairana, District - Shamli.
4. Learned counsel for the applicant submits that he was travelling in a pickup van as a paid passenger and has no concern with the confiscated material (country made liquor and Haryana wine) from the pickup van. It is also submitted by learned counsel that applicant was undertaking work of tiles fixing at Roorkee and it was Sunday when he was going to Meerut and taken lift at Muzzafar Nagar. He further submits that applicant is innocent person and falsely implicated in the present case. He has no criminal history and has no concern with the confiscated items. Learned counsel lastly submits that applicant is languishing in jail since 31.1.2021 and in case, he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
5. Learned A.G.A. has vehemently opposed the prayer of bail and submits that applicant was arrested from spot and being part of gang along with other co- accused is not entitled for bail.
6. 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, reported in 2021 SCC Online SC 230, decided on 18.3.2021 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 prima facie applicant was a paid passenger in the pickup van and also considering that in case of conviction, period of sentence being less than 7 years and fine; applicant has no criminal history and is languishing in jail since 31.1.2021, this Court is of the view that a case of grant of bail is made out.
8. Let applicant - Raju @ Pawan 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 informant 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 him 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. 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 :- 28.4.2021 Rishabh