Allahabad High Court
Smt. Mukesh Tomar vs State Of U.P. on 13 December, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 22844 of 2022
Applicant :- Smt. Mukesh Tomar
Opposite Party :- State of U.P.
Counsel for Applicant :- Santosh Kumar Upadhyay,Rishabh Kumar Pandey,Vinod Kumar Upadhyay
Counsel for Opposite Party :- G.A.,Yogendra Pal Singh
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. 373 of 2021 under Sections 363, 302, 201 IPC, P.S. Mundali, District Meerut.
3. As per contents of FIR, the incident has place on 7th November, 2021 at about 2.00 P.M. when the minor son of first informant went missing. F.I.R. has been lodged against unknown persons. Applicant has been taken into custody along with her minor son on the basis of recovery of dead body from her house.
4. Learned counsel for applicant submits that the she has been falsely implicated in the charges levelled against her and there is no direct evidence indicating her complicity in the crime alleged. It is submitted that applicant's house is separate from that of the first informant with a lane intervening. Learned counsel has drawn attention to the portion of the case diary indicating C.C.T.V. footage to submit that the applicant was never seen entering the house of the first informant nor was the deceased seen entering the house of applicant. It is submitted that there is no eye witness account and except for circumstantial evidence, there is no other credible evidence against the applicant and even the chain of events is not complete. It is further submitted that recovery of alleged weapon is not at the instance of applicant nor has any F.S.L. report been submitted with regard to same. Learned counsel submits that applicant being a lady is in jail since 18th November, 2021 and as yet evidence of only P.W.1 is ongoing although as per charge sheet, there are total of 25 witnesses and as such there is no hope of any early conclusion of trial.
5. Learned A.G.A. appearing on behalf of State as well as learned counsel for informant have opposed bail application with the submission that recovery of body has been from the house of the applicant and on the statement of her husband implicating the applicant in the crime. It is submitted that weapon allegedly used was also recovered from the house of applicant and as such the chain of circumstantial evidence is complete.
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 there is no direct eye witness account with regard to crime alleged and applicant has been taken into custody on the basis of recovery of dead body from her house and also upon the alleged extra judicial confessional statement of her husband. However it does not appear that recovery of body or of the alleged weapon used was at the instance of applicant. At this stage, C.C.T.V. footage also does not appear to implicate the applicant who is in jail since 18th November, 2021 with evidence of only P.W.1 ongoing and as such there does not appear to be hope of any early conclusion of trial.
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 Smt. Mukesh Tomar 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 she 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 her 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 her 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 her in accordance with law.
Order Date :- 13.12.2022
Prabhat
