Allahabad High Court
Virendra Sharma vs State Of U.P. on 27 October, 2016
Bench: Ranjana Pandya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 13
A.F.R.
Case :- BAIL No. - 6439 of 2016
Applicant :- Virendra Sharma
Opposite Party :- State Of U.P.
Counsel for Applicant :- Sher Bahadur Yadav
Counsel for Opposite Party :- Govt. Advocate,Mahesh Kr. Kaushal
Hon'ble Mrs. Ranjana Pandya,J.
Heard learned counsel for the applicant, learned counsel for the informant, learned A.G.A. for the State and perused the record.
It has been contend on behalf of the applicant that as per medical report, Exhibit Annexure-4 to the affidavit annexed with the bail, the nature of the injuries was opined to be simple. It was opined to have been caused by blunt and hard object, hence, the case did not fall within the ambit of Section 326 I.P.C. Besides, it has been submitted that NCR was lodged by the applicant prior to the present F.I.R. i.e. on 05.02.2016 about the present incident, thus there are cross versions and at this stage it cannot be said that to who was the aggressor. It has further been stated that the accused is in jail since 29.05.2016 with no criminal history to his credit. Charges have been framed against the accused. There is previous enmity about immovable property between the parties. He has falsely been implicated and is entitled to bail.
I have perused the counter affidavit filed by the informant.
Learned counsel for the informant and the learned A.G.A. have submitted that as per the X-ray report, conducted by a private diagnostic Centre, the amputation of distal phalynx was noted with associated soft tissue loss of left little finger, thus, as per the law laid down by the Apex Court in AIR 1970 Supreme Court 1969 (V 57 C 421), Hori Lal and another Vs. State of U.P., the case is squarely covered by the 7th Clause of Section 320 I.P.C. defining grievous hurt.
Learned counsel for the informant has further placed reliance on [(2014) 16 Supreme Court Cases, page 623], Sundeep Kumar Bafna Vs. State of Maharashtra and another, and submitted that the grant of bail is regulated by Section 436 and 437 Cr.P.C. and the criteria of grant or refusal of bail has been laid down in AIR 1978 Supreme Court, page 429, Gudikanti Narasimhulu and others Vs. Public Prosecutor, High Court of Andhra Pradesh.
It is well settled that "bail or jail" at the pre trial or post conviction stage belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion.
Learned counsel for the complainant and A.G.A. has further submitted that the accused would not cooperate with the trial inasmuch as he appeared before the investigating agency only after process under Section 82 Cr.P.C. was issued against him, hence, if he is granted liberty of bail, he would misuse the liberty of bail.
Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 of the Constitution that the crucial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community.
I think, bail should not be withheld as a punishment but the main requirement when bail is granted is merely to secure the attendance of the accused at the trial and his cooperation. The Test to see whether bail should be granted or refused is the nature of accusation, the nature of evidence in support of the accusation, the severity of punishment which conviction will entail and the attendance and cooperation of the accused during trial.
It is also to be seen whether the course of justice would be thwarted by the accused who seeks the benignant jurisdiction of the Court to be freed for the time being.
In the present case, the evidence before the trial court has not yet begun as stated at the bar. The delicate light of the law favours release unless countered by the negative criteria necessitating that course.
Although, in the F.I.R., the informant who is an advocate has not come out with enmity but in the NCR lodged by the accused prior to the present F.I.R., he has stated that there is enmity between the parties. Enmity is a double-edge weapon. So far as procuring the attendance of the accused during trial is concerned, conditions may be imposed so that he cooperates with the trial.
Keeping in view the nature of injuries, the period of detention, the nature of evidence in support of the accusation and the severity of punishment which conviction will entail, I think, the accused is entitled to bail.
Let the applicant Virendra Sharma, involved in Case Crime No. 36 of 2016, under Sections 323/326/392/504/506 I.P.C., Police Station Sarojini Nagar, District Lucknow, be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) 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. is issued and the 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 of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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.
Order Date :- 27.10.2016
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