Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33664 of 2019 Applicant :- Vivek Kumar Opposite Party :- State of U.P.
Counsel for Applicant :- Krishna Kumar Patel,Amit Daga,Kunwar Bahadur Srivastava,Mayank Yadav,Noor Mohammad,Vivek Kumar Singh,Vivek Sharma Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri K.B. Srivastava, learned counsel for applicant and learned A.G.A. for State.
2. Applicant-Vivek Kumar, 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 13.08.2019, passed by Sessions Judge, Bijnor, in Case Crime No.177 of 2019, under Section 306 I.P.C., Police Station Afjalgarh, District Bijnor.
3. Father of deceased girl lodged an FIR on 01.07.2019 alleging that applicant, a co-villager, was in physical relationship with his daughter on a false assurance of marriage. Her daughter has given a complaint before Superintendent of Police when applicant started giving threats to her and family members and also with regard to threat of posting her unsolicited videos on social media platforms. Before said application was considered by Superintendent of Police the daughter of First Informant committed suicide. Before her death she has written a dying declaration wherein she has specifically stated that applicant remained in physical relationship with her on false assurance of marriage and applicant is the only person responsible for her act of suicide.
4. Learned counsel for applicant submitted that admittedly deceased and applicant were in consensual relationship for a very long period of nine years. Cause of death was not ascertained during post-mortem and viscera was preserved, which was sent for examination. According to examination report aluminium phosphide poison was found in viscera. It is still not ascertained, whether alleged suicide note was written by deceased herself or by some other person. No ingredient of the offence of abetement of suicide prima facie appears during investigation. There is no call detail of conversation between applicant and deceased after 25th June, 2019, therefore, there is no over act or mens rea on the part of applicant for abetement of suicide. Applicant was working as medical representative with a reputed pharmaceutical company. Even on the basis of alleged suicide note, no case of abetement of suicide is made out. Lastly, it is submitted that applicant has no criminal history and he is languishing in jail since 18.07.2019 and in case, he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
5. Learned A.G.A. appearing for State has opposed the prayer for bail and submits that it is admitted case that applicant and deceased were in relationship for about nine years. Before the victim took unfortunate step to commit suicide, she had even approached the Superintendent of Police narrating her grievance that applicant remained in relationship with her under the false assurance of marriage. Therefore, this bail application is liable to be rejected.
6(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. 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.
(C) 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 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 tempering with the evidence, relevant factors mentioned above, particularly that applicant and deceased were in relationship for a very long period of nine years; there was not a single complaint against applicant during their long relationship except a complaint made just few days before she committed suicide; considering the law on this issue as discussed by this Court in Ravindra Pratap Sahi alias Pappu Sahi vs. State of U.P. (Criminal Misc. Bail Application No. 20591 of 2021), decided on 07th July, 2021 and also taking note of the submission made on behalf of applicant that even the contents of alleged suicide note are not sufficient to make out a case against applicant under Section 306 IPC; and that applicant has no criminal history, is languishing in jail since 18.07.2019, this Court is of the view that a case of grant of bail is made out.
8. Let the applicant- Vivek Kumar 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 the 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 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.
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. Observations made above 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 :- 28.7.2021 AK