Allahabad High Court
Sharda Prasad @ Kallu Upadhyay vs State Of U.P. on 23 August, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 70
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35676 of 2022
Applicant :- Sharda Prasad @ Kallu Upadhyay
Opposite Party :- State of U.P.
Counsel for Applicant :- Santosh Kumar Mishra
Counsel for Opposite Party :- G.A.
Hon'ble Manish Mathur,J.
1. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State and perused the record.
2. This first bail application has been filed with regard to Case Crime No.331 of 2021, under Sections 379, 411, 413 I.P.C., P.S. Kotwali Karvi, District Chitrakoot.
3. The first information has been lodged against unknown persons indicating theft of mobile on 21.08.2021.
4. Learned counsel for applicant submits that applicant has been arrested showing recovery from his person of nine mobile phones at the pointing out of an informant. It is submitted that the first information report has been lodged on 04.09.2021 indicating the occurrence of incident as 21.08.2021 whereas the date of alleged recovery is 08.09.2021. It is submitted that the very fact that recovery could be effected after about 15 days of the alleged incident in itself doe not give credence to the allegations against the applicant. It is submitted even otherwise the applicant's arrest is only on the basis of extra-judicial confession, which even otherwise is inadmissible in evidence.
5. Learned Additional Government Advocate appearing on behalf of State has opposed the bail application with submission that recovery memo itself makes it evident that the applicant was caught red-handed with stolen mobile phones since he was unable to produce any receipt or documentary proof pertaining to ownership of the said mobile phones.
6. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :-
"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."
"27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."
7. Considering the submissions advanced by learned counsel for the parties and upon perusal of the material on record, it is evident that the applicant was not named in the F.I.R. and has been arrested only on account of recovery being shown to be effected from his person, the recovery memo does not appear to have any independent witnesses and even otherwise the recovery appears to have bee effected after more than 15 days from the date of alleged occurrence, prima facie, and subject to further evidence being led in trial, the recovery memo does not inspire confidence, as such, without expressing any opinion on the merits of case,this Court finds, the applicant is entitled to be released on bail in this case.
8. Accordingly bail application is allowed.
9. Let applicant Sharda Prasad @ Kallu Upadhyay, involved in the aforesaid case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(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 :- 23.8.2022
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