Court No. - 83
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 19853 of 2021 Applicant :- Ramoo @ Kamlesh Opposite Party :- State of U.P.
Counsel for Applicant :- Ashwani Kumar Pathak Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard learned counsel for the applicant, learned A.G.A. through video conferencing 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.550 of 2020, under Sections 147, 148, 149, 302, 201, 504 and 506 of I.P.C., Police Station-Chauri Chaura, District- Gorakhpur after rejection of his Bail Application vide order dated 8.4.2021 passed by learned Sessions Judge, Gorakhpur.
3. Learned counsel for the applicant submits that initially an F.I.R. was lodged against 8 named accused and 4 unknown persons alleging that on 30.7.2020, informant along with his son Dinesh and Grandson Vibhrat and relative Pappu were going to another village for dinner, but on the way accused person in collusion with each other committed murder of Dinesh. It is further submitted that the applicant was not named in the F.I.R. Even in the statement of the first informant, alleged eyewitness recorded under Section 161 Cr.P.C., he did not name the applicant. However, in the statement of alleged another eye witness Pappu Yadav which was recorded after 26 days of the occurrence, name of the applicant was also mentioned as one of the assailant. It is also pointed out that this Court by different orders had granted bail to all the 8 named accused as well to the 3 co-accused who were not named in the F.I.R. Only remaining accused is the applicant who is before this Court. It is also submitted that the deceased was a habitual drinker and it is also possible that the antemortem injuries which are four in number would have caused by fall. The applicant has no other reported criminal antecedent and he is languishing in jail since 24.3.2021, there is no likelihood of early disposal of trial and the applicant undertakes that if enlarged on bail, he will never misuse his liberty and will co-operate in the trial.
4. Per contra, learned A.G.A. has vehemently opposed the bail application and submits that parity cannot be a sole ground to grant bail and even the bail orders whereby the co-accused has been granted bail are without any reason. However, it is not disputed that all the co-accused have been granted bail and further that applicant's name was disclosed after 26 days of lodging of the F.I.R. in the statement of alleged eyewitness as well as it is also not disputed that the applicant is a co-villager.
5. Law on bail is well settled that 'Bail is a rule and jail is an 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 the criminal antecedents of the accused. It is also well settled that the Court while considering an application for bail must not go into deep into 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 court 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 cases involving sexual offence against a woman should not mandate 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 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 the applicant was not named in the F.I.R., his name was not disclosed in the statement of the first informant recorded under Section 161 Cr.P.C., though he was allegedly an eye witness, applicant's name was disclosed after 26 days in the statement of other eye witness, all the other co-accused have been granted bail by different orders of this Court and also considering the nature of injuries as well as the prevailing situation due to surge in Covid-19 cases, a case of bail is made out.
7. Let the applicant Ramoo @ Kamlesh, involved in aforesaid case crime number be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(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. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
11. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
12. 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.
13. The observations made hereinabove are only for the purpose of adjudicating the present bail application.
Order Date:-19.5.2021 SB Digitally signed by Justice Saurabh Shyam Shamshery Date: 2021.05.19 16:44:41 IST Reason: Document Owner Location: High Court of Judicature at Allahabad