Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20623 of 2020 Applicant :- Udaybhaan Vishwakarma Opposite Party :- State of U.P.
Counsel for Applicant :- Ravindra Prakash Srivastava,Alok Kumar Singh,Ramesh Chandra Pathak,Shashi Dhar Shukla Counsel for Opposite Party :- G.A.,Gaurav Kumar Shukla
Hon'ble Saurabh Shyam Shamshery,J.
Heard Sri Anil Srivastava, learned Senior Advocate appearing on behalf of the applicant, Sri Gaurav Kumar Shukla, learned counsel for the complainant, learned A.G.A. and perused the record.
The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No. 184 of 2019 under Sections 201, 304 I.P.C., police station Pikoliya, District Basti after rejection of his Bail Application, vide order dated 06.03.2020 passed by Sessions Judge, Basti.
Learned counsel for the applicant submits that it is a case where the deceased has himself came at the place of occurrence where the applicant was ploughing the field by a tractor. He further submits that the deceased wanted that his field should be ploughed first which resulted into scuffle between the applicant and the deceased and according to the evidence on record, the applicant pushed the deceased, who fell down and trapped between the rotavator on account of which he died on the spot. He submits that there is no intention or motive of the applicant behind the occurrence, hence the case would not travel beyond the conviction under Section 304 (II) I.P.C. whereas the offence under Section 201 I.P.C. is punishable with a sentence upto seven years. It is lastly submitted that applicant is languishing in jail since 28.12.20219, 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.
Learned counsel for the complainant and learned A.G.A. have vehemently opposed the bail and submitted that the applicant has intentionally threw the deceased, who got trapped in the rotavator and died on the spot and it is a case which would fall under Part-I of Section 304 I.P.C. However, it is not disputed that Section 201 I.P.C. is punishable upto seven years and is a bailable offence.
(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.
(D) 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, 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 the deceased himself came at the place of occurrence where some scuffle occurred between the applicant and the deceased as the deceased wanted that his field should be ploughed first.
The immediate cause of death of the deceased as per the post mortem report is shock and hemorrhage due to ante-mortem injuries which are numbers of crushed injuries. Taking note of the submission of learned Senior Counsel appearing for the applicant that on the basis of material available on record, the case of the prosecution would not go beyond the conviction under Section 304 (II) I.P.C. and also considering that there is no previous criminal history of the applicant and he is languishing in jail since 22.06.2019, this Court is of the view that a case of grant of bail is made out.
8. Let applicant - Udaybhan Vishwakarma 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.
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. 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.
15. 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 :- 27.7.2021 Shiraz