Allahabad High Court
Rajesh And 2 Others vs State Of U.P. on 16 December, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43906 of 2022
Applicant :- Rajesh, Neeraj & Smt. Bhudevi
Opposite Party :- State of U.P.
Counsel for Applicant :- Garun Pal Singh
Counsel for Opposite Party :- G.A.,Kamal Kishor Mishra
Hon'ble Manish Mathur,J.
1. Heard learned counsel for applicants, 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.233 of 2022 under Sections 306, 147 read with Section 34 I.P.C., P.S. Refinery, District Mathura.
3. As per contents of first information report, the incident is said to have taken place on 01.08.2022 when applicants along with co-accused are said to have assaulted the husband of first informant who died due to strangulation. It is alleged that the applicants along with co-accused thereafter tried to make it seen as if the deceased had committed suicide.
4. Learned counsel for applicants submits that F.I.R. has been filed under Section 302 I.P.C. but investigation was thereafter conducted under Section 306 I.P.C. and Bail Rejection order by the court below is also under Section 306, 147 read with Section 34 I.P.C. although investigation is still underway and charge sheet has not been filed. It is submitted that the contents of F.I.R. as well as statements of first informant under Section 161 Cr.P.C. do not fulfill the ingredients of Section 107 I.P.C. and as such no case of abetment against applicant has been made out. It is submitted that even during the statement under Section 161 Cr.P.C., the first informant has admitted of not being a witness to the incident and upon questioning is unable to indicate as to who was instrumental in strangulation of deceased. Attention has also been drawn to statement of independent witness Chhote Lal to submit that there was marital discord between the husband and wife which was the cause of death.
5. Learned A.G.A. has opposed the prayer for bail with submission that as yet investigation is underway and it is not certain that charge sheet will necessarily be filed under Section 306 I.P.C. although investigation is underway in terms of Section 306 I.P.C. since during postmortem, hyoid bone of deceased was found in tact and there was no injury found in that.
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, without expressing any opinion on the merits of case, at this stage and subject to further evidence being led in trial, it appears that although in the F.I.R. as well as in the Statement under Section 161 Cr.P.C., allegations of causing death by strangulation have been alleged but the same do not appear to be borne out by postmortem examination report due to which investigation against applicants is underway under Section 306 I.P.C. However, at this stage, there does not appear to be any credible evidence on record indicating ingredients of Section 107 I.P.C. to be satisfied. As such, without expressing any opinion on the merits of case,this Court finds, the applicants are entitled to be released on bail in this case.
8. Accordingly bail application is allowed.
9. Let applicants Rajesh, Neeraj and Smt. Bhudevi, involved in the aforesaid case crime be released on bail on each of them furnishing a personal bond and two sureties 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 applicants shall file an undertaking to the effect that they 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 applicants shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of their absence, without sufficient cause, the trial court may proceed against them under Section 229-A of the Indian Penal Code.
(iii) In case, the applicants misuse the liberty of bail during trial and in order to secure their presence proclamation under Section 82 Cr.P.C. is issued and the applicants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicants 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 applicants 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 them in accordance with law.
Order Date :- 16.12.2022
kvg/-
