Allahabad High Court
Subendra @ Sobharam vs State Of U.P. on 19 March, 2021
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgment reserved on 18.3.2021
Delivered on 19.3.2021.
Court No. - 83
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 15113 of 2021
Applicant :- Subendra @ Sobharam
Opposite Party :- State of U.P.
Counsel for Applicant :- Mahendra Singh
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Mahendra Singh, learned counsel for the applicant and the learned A.G.A perused the record.
2. By means of this application, the applicant has approached this Court seeking enlargement on bail in Case Crime No.459 of 2020, under Sections 302, 120-B and 201 I.P.C. Police Station-Jaithra, District-Etah after rejection of his bail application vide order dated 18.2.2021 passed by Sessions Judge, Etah.
3. Learned counsel for the applicant submitted that initially F.I.R. was lodged against two named and one unknown person under the above referred sections alleging that the Uncle of the first informant was murdered by the named accused along with one unknown person. The applicant was not named in the F.I.R. The cause of death of the deceased was Shock and Haeomorrahage as a result of ante mortem injury. The name of the applicant was disclosed during investigation in the statement of co-accused Girish who attributed the role of disappearance of dead body of the deceased with the help of the applicant and another co-accused Pintu. There is no direct evidence against the applicant. It has come during investigation that the deceased was in habit of drinking liquor. The applicant has no criminal history and is languishing in jail since 27.10.2020, 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.
4. Learned A.G.A. has vehemently opposed the bail application.
5. 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 the liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as the existence of a prima facie case against the accused, the gravity of the allegations, position and status of the accused, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the accused. 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 while considering application for bail. 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. 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.
6. Considering the rival submission, 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 tampering with the evidence, relevant factors mentioned above, particularly that the applicant was not named in the F.I.R., his name was disclosed in the statement of co-accused Girish; the alleged role attributed to the applicant is of disappearance of evidence, prima-facie there is no direct evidence against the applicant, the applicant has no criminal other criminal history, he is languishing in jail since 27.10.2020, a case of bail is made out.
7. Let the applicant Subendra @ Sobharam, 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.
8. 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.
9. The bail application is allowed.
10. The observations made hereinabove are only for the purpose of adjudicating the present bail application.
Order Date:-19.3.2021
SB
