Allahabad High Court
Banti vs State Of U.P. And Another on 29 June, 2021
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
1
Judgment reserved on 22.6.2021.
Delivered on 29.6.2021.
Court No. - 83
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34070 of 2020
Applicant :- Banti
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Ajit Kumar,Rakesh Kumar Yadav
Counsel for Opposite Party :- G.A.,Dwijendra Prasad
Hon'ble Saurabh Shyam Shamshery,J.
1. Hearing of the present bail application was concluded through video conferencing.
2. Heard Sri Siddharth Mishra, Advocate holding brief of Sri Rakesh Kumar Yadav, learned counsel for the applicant and learned A.G.A. for the State through video conferencing. Video link sent to the learned counsel for the informant remained unresponsive.
3. The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No.533 of 2019, under Sections 304, 504, 506, 354 I.P.C. and 7/8 (POCSO Act) and Section 3 (2) 5 SC/ST Act, Police Station-Khair, District-Aligarh after rejection of his Bail Application vide order dated 6.8.2020, passed by learned Incharge Sessions Judge/ Special Judge (POCSO Act), Aligarh.
4. Informant (husband of deceased and father of victim) lodged an F.I.R. No.0533 dated 27.10.2019 at 06:41 hours at P.S. Khair, District-Aligarh against the applicant under the Sections referred above alleging that on 26.10.2019, his wife, daughter along with wife of his younger brother went to fields to cut paddy and when at about 1.30 they were taking lunch below a shisham tree, applicant tried to run JCB on wife of the informant. When she opposed, accused got down and tried to abduct her minor daughter and tried to outrage her modesty but both the ladies were able to got her released. Thereafter, applicant crushed wife of the informant between shisham tree and JCB, who died while taking her to hospital.
5. Learned counsel for the applicant has submitted that during inquest report it was opined that cause of death was accidental and not homicidal. During investigation, some independent witnesses have stated that applicant was driving JCB but death was caused due to accident as road was not good and they took her to the hospital. Applicant has neither used force nor intended to outrage modesty of the victim. Applicant is a labour. It was not a deliberate or intentional act. Applicant has no criminal antecedent and he is in jail since 24.12.2019. 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.
6. Learned A.G.A. has opposed the bail application and submitted that it is not disputed that applicant was driving JCB on the day of occurrence. Victim in her statements recorded under Section 161 and 164 Cr.P.C. has specifically stated about act of sexual assault on her as well as about the death of her mother by JCB driven by the applicant. Antemortem injuries also support case of the prosecution.
7. I have heard learned counsel for the parties and perused the record.
8 (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.
9. It is not disputed that JCB was driven by the applicant. Victim a minor girl has completely supported case of the prosecution that act by which death is caused is done with intention of causing death and she was also sexually assaulted. Mother of informant has also supported the case of prosecution in her statement. The statements of other alleged eye witnesses which prima facie did not support the case of prosecution appears to be tutored. Applicant has prima-facie committed an offence under Section 304 by causing death of deceased by an act done with intention to cause death whereby she was pressed between tree and JCB, driven by the applicant and also tried to outrage the modesty of a minor girl. These are grave allegations against the applicant.
10. In these circumstance, no case of bail is made out.
11. Accordingly, this bail application is rejected.
Order Date:-29.6.2021
SB
