Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 27566 of 2021 Applicant :- Sunil Maddhesia Opposite Party :- State of U.P.
Counsel for Applicant :- Vimal Kumar Pandey
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Shri Maan Singh, Advocate holding brief of Shri Vimal Kumar Pandey, learned counsel for the applicant, learned A.G.A. 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.727 of 2020, under Sections 304, 323, 504 IPC, Police Station - Kasya, District - Kushi Nagar.
3. Learned counsel for the applicant submits that son of the deceased lodged First Information Report on 28.10.2020 against the applicant and three other co-accused, who are family members alleging that due to prior enmity, accused persons came and started assaulting him and when his father came to rescue, he was also beaten and he died during treatment. Cause of death is opined to be haemorrhage and shock, as a result of ante-mortem injury, which is a lacerated wound of 4cm x 1cm bone deep on right side of head and second is a contusion 5cm x 3cm on right side of head and third is a crushed injury on right foot. It is further submitted that there is no evidence in regard to any prior enmity. Though, it was alleged that complainant was also assaulted, however, there was no injury report to corroborate submission. It is also contended that deceased was a habitual drinker and he fall down when his brother was taking him to his house. On the basis of the contents of First Information Report and the material available on record, the case would not travel beyond the Section 304 part-II IPC, which is punishable upto 10 years. It is lastly submitted that applicant is languishing in jail since 5.11.2020, there is no likelihood of early disposal of trial and the applicant undertakes that if he is enlarged on bail, he will never misuse his liberty, will not commit any offence during bail and will co- operate in the trial.
4. Learned A.G.A. has vehemently opposed the bail and submitted that applicant was one of the person, who actively participated in the offence wherein one person died immediately due to injury, caused on his head. However, he has not disputed that there is no injury report of the informant, who was allegedly received injuries during the occurrence.
5. (A) 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.
(B) 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.
(C) 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.
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 there is no evidence of any prior enmity, that allegelly informant was also injured, however, there was no injury report to support the allegation. Nobody has identified the author of fatal blow and taking note of submission of learned counsel for the applicant that case would fall under the Section 304 part-II IPC and also considering that there is no previous criminal history of the applicant and he is languishing in jail since 21.7.2020, this Court is of the view that a case of grant of bail is made out.
7. Let applicant - Sunil Maddhesia 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 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.
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. It is expected from the trial court that trial of this case will be concluded expeditiously and while granting any adjournment, trial court will take note of the provisions of Section 309 Cr.P.C.
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 :- 28.7.2021 Rishabh Digitally signed by SAURABH SHYAM SHAMSHERY Date: 2021.08.02 11:08:06 IST Reason: Document Owner Location: High Court of Judicature at Allahabad