Ravindra Kumar vs State Of U.P.
2021 Latest Caselaw 8488 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Judgment reserved on19.7.2021.
 
Delivered on 23.7.2021. 
 
Court No. - 79
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28821 of 2020
 

 
Applicant :- Ravindra Kumar
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Rishu Srivastav
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Gyanendra Prakash Srivastav, learned counsel for the applicant and the learned A.G.A. 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.149 of 2018, under Section 304 of I.P.C., Police Station-Kopaganj, District-Mau after rejection of his Bail Application vide order dated 14.7.2020 passed by learned Additional Sessions Judge, Court No.1, Mau.

3.In the instant case, F.I.R. was lodged in pursuance of the order passed by learned Magistrate on an application moved by wife of the deceased on 25.1.2018 alleging that her husband (since deceased) was working for named accused Alok Rai in the State of Andhra Pradesh since 28.12.2017. She received a phone call from her husband on 6.1.2018 that the said Alok Rai had beaten him due to theft of a mobile. On the very next day i.e. on 7.1.2018, said Alok Rai intimated that her husband is admitted at District Hospital Mau. She went to Mau. However, her husband remained untraceable. She further received a phone call on 9.1.2018 from Alok Rai again intimating that her husband is admitted at District Hospital, Mau. When she reached there she found her husband seriously ill, who told that he was mercilessly beaten by Alok Rai and others. During treatment, her husband died on 9.1.2018. The police conducted inquest report and post mortem. However, no complaint was lodged by the police. It was also alleged that a complaint was sent by registered post on 18.1.2018, but still no complaint was lodged. In these circumstances, she approached the Magistrate and finally F.I.R. was lodged on 6.6.2018.

4. Learned counsel for the applicant submits that initially F.I.R. was lodged against named accused person (Alok Rai). However, during investigation, on the basis of statements of friend of said Alok Rai, the entire allegation was put on the applicant who was working as labourer along with the deceased at Andhra Pradesh. It was alleged in the statement that there was a fight between the applicant and the deceased on the issue of theft of a mobile of the applicant and during argument the applicant assaulted the deceased on the backside of his head by 'Chile' an instrument used in preparing food. Learned counsel further submitted that the entire story is manipulated on the basis of post mortem report and only in order to exonerate the named accused Alok Rai. In the statement of said Alok Rai it is alleged that he helped the first informant and had also undertaken the expenses incurred during treatment of the deceased. He even shifted the deceased to Varanasi by air ambulance. However, there is no material on record to support that submission. The applicant has no other reported criminal antecedent and he is languishing in jail since 17.3.2020, 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.

5. Learned A.G.A. has vehemently opposed the bail application and submits that though initially Alok Rai was alleged to be the main culprit however, during investigation, it was found that it was Alok Rai who not only informed the complainant but also helped her husband for his treatment. The eye witness has specifically stated about the role of the applicant who assaulted the deceased. The case of the applicant would fall under 1st part of Section 304 I.P.C. which is punishable for life imprisonment.

6 (A). Law on bail is well settled that 'Bail is a rule and jail is an 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 the 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 into 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 court 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.

7. In the present case, initially the F.I.R. was lodged on the basis of order passed on the application filed by the wife of the deceased. The informant has approached after a period of three weeks before the Magistrate. In the F.I.R., it was alleged that it was Alok Rai, the named accused who assaulted the deceased allegedly for theft of a mobile phone. It is not mentioned in the said application that the said Alok Rai has taken care of her husband. Even the deceased before his death has communicated her wife that it was Alok Rai and his associates who have assaulted him allegedly in connection with theft of a mobile phone. It is also on record that the friend of Alok Rai namely Vaibhav Rai recorded his statement on 29.9.2019 alleging for the first time that the applicant was the real culprit who assaulted the deceased on the issue of theft of a mobile and also stated the manner of assault which corroborates the post mortem report. Alok Rai also recorded his statement narrating how he helped the husband of the informant/complainant.

8. On the basis of aforesaid, it is apparent that the name of the applicant is prima-facie disclosed only to save the skin of Alok Rai and also considering the submission of learned counsel for the applicant that the applicant is a poor labourer could be made easily a scapegoat to save Alok Rai his employer.

9. Considering 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 discussed above and also considering that it could be a case of false implication, a case of bail is made out.

10. Let the applicant Ravindra Kumar, involved in aforesaid case crime number 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 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.

11. 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.

12. The bail application is allowed.

13. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

14.The computer generated copy of such order shall be self attested by the counsel of the party concerned.

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.

16. The observations made hereinabove are only for the purpose of adjudicating the present bail application.

Order Date:-23 .7.2021

SB