Court No. - 83
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 17097 of 2021 Applicant :- Vipin Opposite Party :- State of U.P.
Counsel for Applicant :- Avinash Pandey Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
This vacation Bench is hearing cases through virtual mode due to surge in Covid-19 cases.
Heard learned counsel for the applicant, learned A.G.A. through video conferencing 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. 43 of 2021, under Sections 386, 504, 506 IPC, Police Station - Nagal, District - Saharanpur after rejection of his Bail Application, vide order dated 2.4.2021 passed by Sessions Judge, Saharanpur.
Learned counsel for the applicant submits that allegation against the applicant is of exhortation which are based on false and frivolous grounds. Rather it is a case where applicant being a whistle blower was actively pointing out misappropriation of funds by the wife (victim) of first informant, who was Gram Pradhan at the relevant time. Learned counsel has drawn the attention of Court towards various applications annexed along with this application in this regard which are much prior to the alleged incident even there is an affidavit sworn by the applicant wherein he has alleged threat to his life by the first informant. Learned counsel also pointed out there is delay of 21 days in lodging the First Information Report as such incident is alleged incident occurred on 11.2.2021 whereas the First Information Report is lodged on 11.3.2021. It is further submitted that there is no criminal history of applicant and he has been involved in the present case only because applicant was trying to point out the misappropriation of funds committed by wife of the first informant. It is lastly submitted that applicant is languishing in jail since 22.3.2021, 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.
Learned A.G.A. has opposed the bail on the basis of the contents of First Information Report. However, prima facie, he has not disputed the documents annexed along with this application to show that applicant is a whistle blower.
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.
Considering the rival submissions, 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, a whistle blower, was trying to collect evidence of the alleged misappropriation of funds by the wife (Gram Pradhan) of first informant; that there is no independent witness to the alleged crime and considering that there is delay of about 21 days in lodging the First Information Report and further that applicant has no criminal history and is languishing in jail since 22.3.2021, this Court is of the view that a case of grant of bail is made out.
Let applicant - Vipin 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. 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 :- 17.5.2021 Rishabh Digitally signed by Justice Saurabh Shyam Shamshery Date: 2021.05.18 17:04:02 IST Reason: Document Owner Location: High Court of Judicature at Allahabad