Allahabad High Court
Kishan Devi @ Kishani vs State Of U.P. on 21 December, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 51707 of 2021
Applicant :- Kishan Devi @ Kishani
Opposite Party :- State of U.P.
Counsel for Applicant :- Ashish Goyal,Deepak Kumar Pandey,Ken Singh,Rakesh Kumar Pandey
Counsel for Opposite Party :- G.A.,Pankaj Dwivedi
Hon'ble Manish Mathur,J.
1. Heard learned counsel for applicant, learned counsel for informant and 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. 596 of 2021 under Sections 272, 273, 304 IPC and 60(A) U.P. Excise Duty/Excise Act, P.S. Tajganj, District Agra.
3. As per contents of FIR, applicant is engaged in the business of selling country made liquor which is allegedly supplied to her by one Dara Singh. It is stated that on 22nd August, 2021, the son of first informant along with his friend Tara Chandra purchased country made liquor from shop of applicant and upon consumption of same, fell ill and subsequently passed away due to adulteration.
4. Learned counsel for applicant submits that the applicant has been falsely implicated in the charges levelled against her and there is not even shred of evidence indicating that death has occasioned due to consumption of country made liquor which was sold by applicant. It is submitted that even as per allegations levelled in the F.I.R., Dara Singh is main manufacturer of country made liquor, who has already been admitted to bail by co-ordinate Bench of this Court in Criminal Misc. Bail Application No. 53311 of 2021. It is submitted that post mortem report of deceased Tara Chandra indicates death having been caused due to chronic lung disease whereas that pertaining to Sunil, son of first informant is due to consumption of ethyl and methyl alcohol. It is submitted that all the nominated accused have already been enlarged on bail by co-ordinate Benches of this Court while applicant is under incarceration since Ist September, 2021 with only charges having been framed.
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 there is clear allegation against applicant of having supplied the country made liquor which was the cause of death of Sunil. It is submitted that applicant is the only person in the village who is in the business of selling country made liquor and as such clear charges have been imputed against her. Learned counsel for informant has also submitted that there is recovery of spurious liquor at the instance of applicant which is clearly indicated in the recovery memo. It is further submitted that bail applications of co-accused are only on the basis of the fact that applicant is the main accused in the matter.
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 although allegations have been levelled against applicant of having sold the country made liquor which resulted in death of son of first informant but as yet, despite charge sheet having been filed, there does not appear to be any evidence on record indicating that spurious country made liquor made was sold by the applicant although F.I.R. itself states that co-accused Dara Singh who is resident of same village was in the business of manufacturing country made liquor. With regard to recovery allegedly made at the instance of applicant, no F.S.L. report is on record indicating the said recovered liquor to be spurious in nature. At this stage there does not appear to be any credible evidence against applicant who is under incarceration since Ist September, 2021 with only charges having been framed in the matter and the applicant being entitled under Section 437 Cr.P.C.
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 Kishan Devi @ Kishani involved in the aforesaid case crime be released on bail on her 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 her counsel. In case of his absence, without sufficient cause, the trial court may proceed against her 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 her, 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 :- 21.12.2022
Prabhat
