Gautam vs State Of U.P.
2022 Latest Caselaw 21927 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 42
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 56000 of 2022
 

 
Applicant :- Gautam
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Deshraj Singh,Dushyant Kumar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vivek Kumar Birla,J.

Heard learned counsel for the applicant and learned A. G. A. for the State and perused the record.

Present application under Section 439 Cr.P.C. has been filed by the applicants who is involved in Case Crime No. 187 of 2022, under Sections 302, 201, 34 P.S. Thakurdwara, District Moradabad.

Learned counsel for the applicant submitted that the other co-accused Amit has already been enlarged on bail by this Court vide order dated 3.11.2022 passed in Criminal Misc. Bail Application No. 25383 of 2022 (Amit vs. State of U.P.) He further submitted that since the role of the applicant is identical to that of the co-accused who has already been enlarged on bail, the applicant is also entitled to be enlarged on bail on the ground of parity. It is further pointed out that the charge-sheet was submitted and two sections being Sections 201 and 34 IPC were added, wherein co-accused Amit has been granted bail vide order dated 29.11.2022 passed by the District and Sessions Judge, Moradabad in Bail Application No. 4883 of 2022. Submission, therefore, is that the applicant is also entitled for bail on the ground of parity. Learned counsel for the applicant further submits that the applicant is in jail since 21.4.2022.

The aforesaid order dated 3.11.2022 is quoted as under:-

"1. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State as well as Mohd. Rizwan Ahmad(Qureshi), learned counsel for informant and perused the record.

2. This first bail application has been filed with regard to Case Crime No. 187 of 2022 under Section 302 IPC, registered at Police Station Thakurdwara, District Moradabad.

3. As per contents of FIR, the incident is said to have taken place on 19.04.2022 at about 05.00 P.M. when the applicant alongwith co-accused is said to have been accompanied by the deceased for purposes of some work whereafter he did not return and the informant's other brother subsequently found the dead body of deceased at 06.00 A.M. lying in the field of one Om Raj.

4. Learned counsel for applicant submits that the applicant has been falsely implicated in the charges levelled against him only on account last seen evidence which even otherwise is a weak evidence and requires corroboration. It is submitted that the time lag between last seen and discovery of body is of more than12 hours and therefore it cannot be said that no other person could have murdered the deceased. It is submitted that the applicant has been taken into custody on the basis of alleged extra judicial confession of co-accused Gautam from whom also the T-shirt with which strangulation is said to have taken place was recovered. It is submitted that there is no recovery from the applicant and even otherwise the statement of said Gautam although inadmissible evidence is in-variance with the recovery memo particularly with regard to place of recovery of mobile of deceased which casts a reasonable doubt on the prosecution version. It is further submitted that the post-mortem report also indicates smell of alcohol present in the dead body although death has occasioned due to antemorem strangulation. It is submitted that the applicant is in jail since 21.04.2022 and as yet charge-sheet has not been filed.

5. Learned Additional Government Advocate appearing on behalf of State and Mohd. Rizwan Ahmad(Qureshi), learned counsel for informant have opposed the bail application with the submission that the applicant and co-accused was last seen with the deceased and have been taken into custody on the basis of confessional statement of co-accused Gautam from whom the T-shirt used for strangulation has also been recovered.

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. The evidence of last seen also requires corroboration as held by Hon'ble the Supreme Court in the case of Bodh Raj @ Bodha versus State of Jammu and Kashmir reported in (2002)8 SCC 45. The relevant observation is as under:

"The last seen theory comes into play where the time gap between the point of time when the Accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the Accused being the author of crime becomes impossible. It would be difficult in some cases to positively established that the deceased was last seen with the Accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that Accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."

8. Considering the submission advanced by learned counsel for parties and upon perusal of material available on record, it appears that the applicant has been taken into custody on the basis of last seen evidence as well as extra judicial confessional statement co-accused Gautam under section 161 Cr.P.C, the admissibility of which may be a matter to be examined by the trial court at the stage of evidence. There appears to be certain contradiction in the statement of co-accused Gautam with the recovery memo. The evidence of last seen also requires corroboration at this stage, there does not appear to be any credible evidence against the applicant, he is in jail since 21.04.2022.

9. 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.

10. Accordingly bail application is allowed.

11. Let applicant, Amit, 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. "

The prayer for bail has vehemently been opposed by learned A. G. A. However, he does not dispute the fact that the similarly placed co-accused has been granted bail by this Court.

Considering the submissions made by learned counsel for the applicant as well as learned A. G. A. and the fact that identically placed co-accused Amit has already been enlarged on bail by this Court, without expressing any opinion on the merits of the case, it is deemed fit to enlarge the applicant on bail.

Let the applicant Gautam, 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 SHE 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 HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HER UNDER SECTION 229-A IPC.

(iii) IN CASE, THE APPLICANT MISUSE THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HER 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 HER, 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 HER 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 :- 20.12.2022

Lalit Shukla