Allahabad High Court
Yogesh vs State Of U.P. on 19 December, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9770 of 2020
Applicant :- Yogesh
Opposite Party :- State of U.P.
Counsel for Applicant :- R P Rajan,Ranjit Kumar Yadav,Ratnesh Srivastava,Swati Agrawal Srivastava
Counsel for Opposite Party :- G.A.,Ishwar Chandra Tyagi
Hon'ble Manish Mathur,J.
1. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State as well as learned counsel for informant and perused the record.
2. This first bail application has been filed with regard to Case Crime No.213 of 2019, under Sections 364, 302, 201 IPC, registered at Police Station Rajabpur, District Amroha.
3. As per contents of FIR, the husband of first informant is said to have went on a work related purpose on 27.09.2019 and while the first informant was talking to him, the call was cut short by her husband with the statement that main accused Ruby Agrawal was calling him. It is stated that subsequently the mobile phone of husband of first informant was continuously switched off due to which the first informant lodged the missing person report and thereafter FIR has been lodged against Ruby Agrawal and one another unidentified person.
4. Learned counsel for applicant submits that the applicant has been falsely implicated in the charges levelled against him and although he is not named in the FIR, he has been taken into custody on the basis of additional statement of first informant indicating that allegedly applicant called up a relative of first informant and confessed his role in the crime. It is submitted that the story itself is quite improbable and does not inspire confidence. It is submitted that there is no eye witness account and only evidence relied upon by the prosecution being that of Data Ram son of Shiv Charan only indicates a last seen evidence against the applicant. It is submitted that prosecution is also placing reliance on call detail report as per which allegedly applicant was found in the company of deceased and the main accused Ruby Agrawal. It is thus submitted that there is no direct and only circumstantial evidence against the applicant who is in custody since 25.10.2019 with evidence of only four prosecution witnesses having been completed although there are a total of 36 prosecution witnesses and as such there is no hope of early conclusion of trial. It is submitted that nominated accused Ruby Agrawal has already been admitted to bail by coordinate bench of this Court in Criminal Appeal No.3007 of 2020 since allegation under the SC/ST was also imputed against her, which however has not been imputed against the applicant.
5. Learned Additional Government Advocate appearing on behalf of State and learned counsel for informant have opposed the bail application with the submission that applicant has rightly been taken into custody on the basis of CDR which clearly indicates applicant being in the company of deceased and main accused Ruby Agrawal at the time when the incident has taken place. It is submitted that there is recovery against the applicant as well and the body has also been unearthed on the joint pointing out of applicant in two other accused.
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 submissions advanced by learned counsel for parties and upon perusal of material available on record, it appears that the applicant is not named in the FIR and has been taken into custody only on the basis of alleged confession of two relatives of the first informant through phone. Alleged extra judicial confessional statement before the police is also said to be against the applicant. The aforesaid extra judicial confessional statements are however required to be corroborated by evidence during the stage of trial and at this stage, except for a last seen evidence, there does not appear to be any credible evidence against the applicant particularly since there is no independent witness of the alleged recovery. The applicant is in jail since 25.10.2019 and as yet 32 prosecution witnesses are yet to be examined. The main nominated co-accused namely, Ruby Agrawal has already been admitted to bail by coordinate bench of this Court as indicated hereinabove.
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, Yogesh, 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 :- 19.12.2022
Subodh/-
