Luxmi vs State Of U.P.
2022 Latest Caselaw 20417 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 42
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 47105 of 2022
 

 
Applicant :- Luxmi
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Sanjay Srivastava
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vivek Kumar Birla,J.

Heard learned counsel for the applicant, learned AGA for the State and perused the record.

The present bail application filed on behalf of the applicant Luxmi seeking his bail in connection with Case Crime No. 229 of 2022, under Sections 302, 201, 120B IPC, Police Station Kokharaj, District Kaushambi.

At the very outset, learned counsel for the applicant is claiming parity on the ground that the one of the accused Rakesh Singh has already been granted bail by this Court vide order dated 30.11.2022 passed in Criminal Misc. Bail Application No. 54376 of 2022 (Rakesh Singh vs. State of UP) and therefore, the applicant herein is entitled to be enlarged on bail on the ground of parity. It is however submitted that the applicant is innocent with no previous criminal history and is in jail since 16.6.2022 and in case he is enlarged on bail, he will not misuse the liberty of bail.

The order dated 30.11.2022 passed in Criminal Misc. Bail Application No. 54376 of 2022 (Rakesh Singh vs. State of UP) is quoted as under:

"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. 229 of 2022 under Sections 302, 201 and 34 IPC, P.S. Kokharaj, District Kaushambi.

3. As per contents of FIR, the second wife of deceased is said to have been in the relationship with one Shani alias Mahendra and the two conspired to cause the death of deceased who was the brother of informant with the active connivance and participation of the applicant. It is stated that all the nominated persons strangulated the deceased.

4. Learned counsel for applicant submits that the applicant has been falsely implicated in the charges levelled against him only on ground of suspicion. It is submitted that even in the alleged confessional statement of co-accused Shani alias Mahendra, there is no allegation cast upon the applicant of having participated in the crime. It is submitted that in fact there is no cogent evidence against the applicant of his involvement even though charge sheet in the matter has already been filed against him. The applicant is under incarceration since 7th October, 2022.

5. Learned A.G.A. appearing on behalf of State has opposed bail application with the submission that active participation of the applicant is clearly indicated in the F.I.R. and charge sheet in the matter has also been filed.

6. Considering submissions advanced by learned counsel for parties and upon perusal of material on record, prima facie subject to evidence led in trial, it appears that applicant has been apprehended only on the basis of suspicion indicated in F.I.R. Co-accused Shani alias Mahendra in his alleged confessional statement also does not indicate any participation of applicant in the crime alleged. The applicant is in jail since 7th October, 2022 with charge sheet having been filed but at this state, there does not appear to be any credible evidence against the applicant.

7. 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."

8. Looking to the nature of allegations levelled against the applicant and submission made in the bail application, without expressing any opinion on the merits of case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, particularly since no reasonable apprehension of tampering with the witnesses has been alleged, prima facie, this Court finds, the applicant is entitled to be released on bail in this case.

9. Accordingly bail application is allowed.

10. Let applicant Rakesh Singh 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."

Learned AGA has opposed the prayer for grant of bail to the applicant.

Keeping in view the nature of the offence, evidence on record regarding complicity of the accused, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018)3 SCC 22 and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

Let the applicant Luxmi, who is involved in aforementioned 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 subject to following conditions. Further, before issuing the release order, the sureties be verified.

(i) 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.

(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 IPC.

(iii) IN CASE, THE APPLICANT MISUSE 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 FAIL 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 IPC.

(iv) 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.

(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.

However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

Order Date :- 9.12.2022

Abhishek