1. Heard Sri I.K. Chaturvedi, learned Senior Advocate assisted by Sri Anubhav Kumar, Advocate for applicant and learned A.G.A. for State.
2. Applicant-Rohit alias Machchhar 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 22.11.2019 passed by Additional District and Sessions Judge, Court No. 04, Meerut in Case Crime No. 73 of 2019, under Sections 302, 201, 364, 34 IPC, Police Station Rohata, District Meerut.
3. Learned counsel for the applicant submits that initially a missing report was lodged on 03.04.2019 and thereafter on 05.04.2019 FIR was lodged against three named accused on the basis of evidence of last seen. Later on the information given by one Mukhbir, applicant was arrested on 09.04.2019 and allegedly on the pointing out of applicant the dead body was recovered near the Hindon Nadi. According to post mortem report cause of death was found to be asphyxia due to manual strangulation and hyoid bone was found fractured. Learned Senior Advocate submits that case put up by prosecution is self contradictory as applicant in his statement states that dead body was recovered on 08.04.2019, however, recovery memo says that it was recorded on 09.04.2019 though it has not been mentioned that it was on the pointing out of applicant. Co-accused, Sonu alias Phalwaan, who was named accused, has been granted bail by this Court on 26.09.2019 in Criminal Misc. Bail Application No. 37342 of 2019. Lastly, it is submitted that applicant has no criminal history and is languishing in jail since 09.04.2019 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 prayer for bail and submits that dead body of deceased was recovered on the point out of applicant. However, he is not able to dispute the fact that co-accused is already released on bail by this Court and the submission made on behalf of applicant in regard to date of recovery of dead body and arrest of applicant.
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 the liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as the existence of a prima facie case against the accused, the gravity of the allegations, position and status of the accused, the likelihood of the accused fleeing from justice and repeating the offence, the possibility 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 while considering application for bail. It is also well settled that 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. 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.
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 FIR and entire allegation is based on his confessional statement; prima facie it appears that dead body was not recovered on the pointing out of applicant; applicant is in jail since 09.04.2019 and also that no other criminal antecedents are reported, this Court is of the view that a case of grant of bail is made out.
7. Let applicant-Rohit alias Machchhar 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 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 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.
vi) The Trial Court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of 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.
Order Date :- 19.2.2021 AK