Allahabad High Court
Vivek vs State Of U.P. on 23 July, 2021
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Judgment reserved on 19.7.2021.
Delivered on 23.7.2021.
Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31211 of 2020
Applicant :- Vivek
Opposite Party :- State of U.P.
Counsel for Applicant :- Atharva Dixit,Jitendra Rana,Manish Tiwary(Senior Adv.)
Counsel for Opposite Party :- G.A.,Kashi Naresh Mishra
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Manish Tiwary (Senior Adv.) assisted by Atharva Dixit, learned counsel for the applicant, learned A.G.A. and Kashi Naresh Mishra, learned counsel for the informant. 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.312 of 2019, under Sections 147, 148, 149, 452 and 302 I.P.C., Police Station-Jarcha, District-Gautam Budh Nagar after rejection of his Bail Application vide order dated 19.3.2020, passed by First Additional Sessions Judge,Gautam Budh Nagar
3. In the F.I.R. it is alleged that the five named accused including the applicant exchanged hot talks with the real brother of the informant on the issue of running of motorcycle and one of them assaulted him with knife who succumbed to injuries while others were holding him.
4. Learned counsel for the applicant submits that no specific role is alleged to any of the accused persons in the F.I.R. However, during investigation, the brother of the deceased improved the prosecution story and it is alleged that initially there was a struggle between the accused persons and the deceased on the issue of running of motorcycle which was settled. However, later on all the accused persons came to his house and the applicant assaulted the deceased with knife while others four co-accused were holding him. However, it remained unexplained about the other two injuries which were found during medical examination of the deceased. It is submitted that on the alleged date of occurrence, the brother of the applicant had a quarrel with the deceased. However, the applicant and other co-accused had no concern with the death of the deceased which was apparently committed by unknown persons. It is submitted that in case the entire prosecution story is considered to be true, the case would not travel beyond the ambit of Section 304 I.P.C. as it was a case of sudden quarrel. The applicant is a young boy who was recently married. The applicant has no other reported criminal antecedent and he is languishing in jail since 25.11.2019, 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. Per contra, learned counsel for the informant and the learned A.G.A. have vehemently opposed the bail application and submitted that on the basis of statements recorded during investigation, it is clearly evident that the applicant and other co-accused were aggressor and after forming an unlawful assembly they entered the house of the deceased and applicant caused vital blow by knife while other co-accused were holding the deceased. Apparently, it is a clear case of murder and not of a culpable homicide not amounting to murder.
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.
(D). The Court while granting bail in the cases involving sexual offence against a woman should not mandate 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, 2021 SCC Online SC 230, in this regard.
7. From a bare perusal of the contents of the F.I.R. and the statements recorded during investigation, it is apparent that earlier on the date of occurrence, there was a quarrel between the accused persons and the deceased on the issue of running of motorcycle. Thereafter, the applicant along with co-accused in a planned manner formed an unlawful assembly and entered into the house of the deceased where the applicant caused solitary vital blow by knife on the deceased while other co-accused were holding him which caused death of the deceased.
8. Taking note of the submissions of the learned A.G.A. and learned counsel for the informant that in these circumstances, it cannot be a case of culpable homicide not amounting to murder. Prima-facie, it is a case which would fall under culpable homicide amounting to murder.
9. In view of the above, no case of bail is made out.
10. Accordingly, this bail application is rejected.
Order Date:-23.7.2021
SB
